Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000. (b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee: (1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”); (2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date; (3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest; (4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control; (5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased; (6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and (7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance. (c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer. (d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful: (1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered; (3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer; (4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and (5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof. (e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable. (f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer. (g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict. (h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03). (i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 7 contracts
Sources: Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.), Indenture (Altice USA, Inc.)
Change of Control. (a) If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7 that is or has become unconditional and subject to the terms of this Section 4.033.9(c) or under Article XI, each Holder will have the right to require the Issuer shall make an offer to repurchase purchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (repurchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) to each Holder of any such Notes Offer electronically or by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control and including the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 15 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (with the unpurchased portion of the Notes required to be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000);
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Depositary. If the Change of Control Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no other interest, if any, shall be payable to Holders who tender Notes pursuant to the Change of Control Offer.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer and directing the Trustee to cancel such Notes.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated for any reason on or before the 60th day after such Change of Control. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 15 nor more than 60 days’ prior notice, notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above), to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to interest, if any, to, but excluding excluding, the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 7 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Change of Control. (a) If Promptly upon entry into a definitive agreement that provides for a Change of Control (but in no event less than 10 Business Days prior to consummating a Change of Control), the Company shall provide written notice thereof to the Holders.
(b) In the event of a Cash Change of Control, the Series A Preferred Stock shall automatically be converted into Common Stock at the applicable Conversion Rate on the date on which the Cash Change of Control occurs, subject with the conversion effective immediately prior to the terms consummation of this Section 4.03the Change of Control.
(c) In the event of a Change of Control that is not a Cash Change of Control, then each Holder, with respect to all but not less than all of its shares of Series A Preferred Stock, by notice given to the Company within 10 Business Days of the date the Company provides written notice of the execution of definitive agreements that provide for such Change of Control, shall be entitled to elect one of the following (with the understanding that any Holder will who fails to timely provide notice of its election to the Company shall be deemed to have elected the right to require the Issuer to repurchase all or any part option set forth in clause (equal to $200,000 or an integral multiple of $1,000 in excess thereof1) below):
(i) convert all, but not less than all, of such Holder’s Notes outstanding shares of Series A Preferred Stock into shares of Common Stock at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to then-applicable Conversion Rate on the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to which such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control oroccurs, at with the Issuer’s option, at any time conversion effective immediately prior to a Change the consummation of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6ii) if the Company will not be the surviving Person upon the consummation of such notice is mailed prior Change of Control or the Company will be the surviving Person but its shares of Common Stock will no longer be listed or admitted to trading on a National Securities Exchange, require the occurrence Company to use its commercially reasonable efforts to deliver or to cause to be delivered to such Holder, in exchange for its shares of a Series A Preferred Stock upon the consummation of such Change of Control, stating a security in the surviving Person or the parent of the surviving Person that has rights, preferences and privileges substantially equivalent to the shares of Series A Preferred Stock, including, for the avoidance of doubt, (A) the right to distributions equal in amount and timing to those provided in Section 4, (B) a conversion rate proportionately adjusted such that the conversion of such security in the surviving Person or parent of the surviving Person immediately following the consummation of such Change of Control Offer would entitle the holder of record to the number of common securities of such Person (together with a number of common securities of equivalent value to any other assets received by a holder of shares of Common Stock in such Change of Control) which, if a share of Series A Preferred Stock had been converted into a share of Common Stock immediately prior to such Change of Control, such holder of record would have been entitled to receive immediately following such Change of Control and (C) structural protections (e.g., the definition of “Change of Control”) no less favorable to the Holders than the protections set forth in this Certificate of Designations (such security in the surviving Person, a “Substantially Equivalent Security”); provided, however, that, if the Company is conditional unable to deliver or cause to be delivered a Substantially Equivalent Security to such Holder in connection with such Change of Control, each Holder (at such Holder’s election) shall be entitled to exercise the option provided in Section 8(c)(i) or Section 8(c)(iv) or require the Company to convert the shares of Series A Preferred Stock held by such Holder immediately prior to such Change of Control into a number of shares of Common Stock (the “MOIC Shares”) at a conversion ratio per share of Series A Preferred Stock owned by such Holder equal to: the quotient of (I) (a) the product of (i) 160% multiplied by (ii) the Issue Price less (b) the sum of (i) the aggregate cash distributions paid on such Series A Preferred Stock on or prior to the occurrence date of such Change of Control plus (ii) $[●]2 divided by (II) an amount equal to 95% of the VWAP of the Common Stock for the 20-day period immediately preceding the consummation of such Change of Control; and
provided, further, that such ratio shall in no event result in a share of Series A Preferred Stock that is being converted into MOIC Shares having a MOIC Value that (71) certain other procedures that a holder exceeds (x) 125% of Notes must follow to accept the Issue Price, in the case of a Change of Control Offer or occurring prior to withdraw such acceptance.
April 10, 2021; and (cy) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules 135% of the exchange so requireIssue Price, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change occurring on or after April 10, 2021 but prior to April 10, 2022 or (2) irrespective of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under when such Change of Control Offer.occurs, is less than the sum of (A) (x) the Issue Price, multiplied by (y) 110%, plus (B) all Accrued Dividends on such share of Series A Preferred Stock on such date;
(giii) Notwithstanding anything to if the contrary herein, a Change Company is the surviving Person upon the consummation of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change continue to hold Holder’s respective shares of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.Series A Preferred Stock; or
(hiv) If Holders of require the Company to redeem all (but not less than 90% in aggregate principal amount all) of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change Holder’s respective shares of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase Series A Preferred Stock at a price in cash per share of Series A Preferred Stock equal to 101% of the principal amount thereof sum of (x) the Issue Price, plus accrued and unpaid interest to but excluding the date of the delivery of the notice for (y) any Accrued Dividends on such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose Series A Preferred Stock as of such Change of Control Offerdate. Any redemption pursuant to this Section 4.03 clause (iv) shall, as determined by the Company, be paid in cash, in shares of Common Stock or in a combination thereof. If all or any portion of such redemption is to be paid in shares of Common Stock, the shares of Common Stock to be issued shall be made valued at 95% of the VWAP for the 20-day period ending on the fifth Trading Day immediately preceding the consummation of such Change of Control; provided, that any Holder that requires the Company to redeem its shares of Series A Preferred Stock pursuant to this Section 8(c)(iv) shall have the right to withdraw such election with respect to all (but not less than all) of its shares of Series A Preferred Stock at any time prior to the fifth Trading Day immediately preceding the consummation of such Change of Control and instead elect to be treated in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
any of clauses (i) The provisions of this Indenture relating through (iii) above. No later than three Trading Days prior to the Issuerconsummation of such Change of Control, the Company shall deliver a written notice to the holders of record of the shares of Series A Preferred Stock stating the date on which the shares of Series A Preferred Stock will be redeemed and the Company’s obligation computation of the amount of cash and/or shares of Common Stock to make an offer be received by the holder of record upon redemption of such shares of Series A Preferred Stock. If the Company shall be the surviving Person upon the consummation of such Change of Control and its shares of Common Stock will remain listed or admitted to repurchase trading on a National Securities Exchange, then no later than 5 Business Days following the Notes consummation of such Change of Control, the Company shall remit the applicable cash and/or shares of Common Stock consideration to each holder of record of then outstanding shares of Series A Preferred Stock entitled to receive such cash or shares of Common Stock consideration pursuant to this clause (iv). If the Company will not be the surviving Person upon the consummation of such Change of Control or the Company will be the surviving Person but its shares of Common Stock will no longer be listed or admitted to trading on a National Securities Exchange, then the Company shall remit the applicable cash and/or shares of Common Stock consideration to such holders of record immediately prior to the consummation of such Change of Control. Any redemptions by the Company shall comply with Sections 1551 and 1552 of the Pennsylvania BCL. The holders of record shall deliver to the Company certificates representing the shares of Series A Preferred Stock, if any, as soon as practicable following such redemption. Holders of the shares of Series A Preferred Stock shall retain all of the rights and privileges thereof unless and until the consideration due to such Holders as a result of such redemption is paid in full in cash, shares of Common Stock or a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount combination of the Notesforegoing, as applicable. After any such redemption, any such redeemed share of Series A Preferred Stock shall no longer constitute an issued and outstanding Equity Interest.
Appears in 6 contracts
Sources: Preferred Restructuring Agreement (Equitrans Midstream Corp), Preferred Restructuring Agreement (EQM Midstream Partners, LP), Preferred Restructuring Agreement (Equitrans Midstream Corp)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating if the fair market value of the consideration payable in connection with such Change of Control for each share of Common Stock is greater than the per share Exercise Price hereunder, the Company may elect by providing proper notice pursuant to Section 3.4 hereof (“Auto-Exercise Notice”) to cause this Warrant to be automatically exercised (even if this Warrant is not surrendered), in lieu of an exercise in accordance with Section 2.1 or Section 2.2, upon consummation of such Change of Control to the extent that any portion of the Warrant remains unexercised at the time of the consummation of the Change of Control. The Holder shall be entitled to receive consideration in the amount equal to the difference between the consideration payable in connection with such Change of Control Offer is conditional on for the occurrence Exercise Shares, if exercised, and the Aggregate Exercise Price for such Exercise Shares. The consideration payable to the Holder in connection with this Section 2.3(a) shall be in the same form as the consideration distributed to holders of Common Stock in connection with such Change of Control; and
provided that, if the consideration distributed to holders of Common Stock in connection with such Change of Control consists of consideration other than cash or Liquid Securities (7or a combination thereof), the consideration payable to the Holder in connection with this Section 2.3(a) certain other procedures that shall be an amount of cash payable by the Company equal to the aggregate Fair Market Value of the Exercise Shares minus the Aggregate Exercise Price. To the extent this Warrant or any portion thereof is automatically exercised pursuant to this Section 2.3(a), the Company agrees to promptly notify the Holder of the amount and form of consideration payable to the Holder in connection with such Change of Control. This Warrant shall terminate in connection with a holder deemed exercise pursuant to this Section 2.3 after payment in full to the Holder of Notes must follow the amounts payable to accept the Holder under this Section 2.3. If the fair market value of the consideration payable in connection with a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service for each share of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount Common Stock is equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and per share Exercise Price, this Warrant will expire upon the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result consummation of a Change of Control may be waived or modified with to the written consent of holders of a majority in outstanding principal amount of the Notesextent this Warrant has not been previously exercised as to all Exercise Shares subject hereto.
Appears in 5 contracts
Sources: Warrant Acquisition Agreement (FreightCar America, Inc.), Warrant Agreement (FreightCar America, Inc.), Warrant Agreement (FreightCar America, Inc.)
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the outstanding Notes pursuant to as set forth under Section 3.07 5.6(a) or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control5.6(d), the Issuer will send a notice Company shall make an offer (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s the Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date. Within 30 days following any Change of Control, the Company will deliver or cause to be delivered notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.6 hereof unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is .
(e) While the Notes are in place for global form and the Change Issuer makes an offer to purchase all of Control at the time of making of Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(f) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 5 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Change of Control. (a) If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7 that is or has become unconditional and subject to the terms of this Section 4.033.9(c) or under Article XI, each Holder will have the right to require the Issuer shall make an offer to repurchase purchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (repurchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) to each Holder of any such Notes Offer electronically or by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control and including the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 15 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (with the unpurchased portion of the Notes required to be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000);
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Depositary. If the Change of Control Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no other interest, if any, shall be payable to Holders who tender Notes pursuant to the Change of Control Offer.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer and directing the Trustee to cancel such Notes.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated for any reason on or before the 60th day after such Change of Control. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 15 nor more than 60 days’ prior notice, written notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above), to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to interest, if any, to, but excluding excluding, the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 5 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Change of Control. (a) If Employee's employment with Employer (as an employee) shall cease for any reason, including Employee's voluntary termination for "good reason" (as defined in paragraph 6(c) below), but not including Employee's termination for "cause" (as described in paragraph 3(d)) or Employee's voluntary termination without "good reason," within 2 years following a "Change of Control" that occurs during the Period of Employment, Employer shall:
(i) Retain the services of Employee, on an independent contractor basis, as a consultant to Employer for a period of no less than 36 months at an annual consulting fee rate equal to the total of Employee's Base Salary in effect at the time of Employee's termination plus an amount equal to the Management Incentive paid to the Employee in the year prior to the "Change of Control";
(ii) Provide Employee with fringe benefits, or the cash equivalent of such benefits, identical to those described in paragraph 4(a) for the period during which Employee is retained as a consultant pursuant to (i) above. To the extent the benefits provided to Employee in this paragraph 6(a)(ii) are deemed taxable benefits, Employer shall reimburse Employee for taxes owed by Employee on the benefits and tax reimbursement; and
(iii) Treat as immediately exercisable all unexpired stock options issued by Employer and held by Employee that are not otherwise exercisable or that have not been exercised (so as to permit Employee to purchase the balance of CBSI Stock not yet purchased pursuant to said options until the end of the full exercise period provided in the original grant of the option right, determined without regard to Employee's termination of employment) and permit Employee to dispose of any restricted stock granted to Employee.
(iv) Subject to Employer's right to make the single lump sum payment described in paragraph 6(a)(v) below, if any portion of the amounts paid to, or value received by, Employee following a "Change of Control" (whether paid or received pursuant to this paragraph 6 or otherwise) constitutes an "excess parachute payment" within the meaning of Internal Revenue Code Section 280G, then the parties shall negotiate a restructuring of payment dates and/or methods (but not payment amounts) to minimize or eliminate the application of Internal Revenue Code Section 280G. If an agreement to restructure payments cannot be reached within 60 days of the date the first payment is due under this paragraph 6, then payments shall be made without restructuring. Subject to paragraph 6(a)(v), Employee shall be responsible for all taxes that are payable by Employee as a result of Employee's receipt of an "excess parachute payment."
(v) Notwithstanding the foregoing of this paragraph 6(a), the Board of Directors of Employer may elect, in its sole discretion, to pay all benefits due Employee pursuant to this paragraph 6 in a single lump sum payment within 90 days following a Change of Control occurs, subject and Employee's termination of employment with Employer. In the event a single lump sum payment is made pursuant to the terms of this Section 4.03foregoing sentence, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and increased to the extent that it has unconditionally exercised its right necessary to redeem hold Employee harmless from all of the Notes pursuant to Section 3.07 or all conditions income and excise tax liability attributable to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000single lump sum payment.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedFor purposes of this paragraph 6, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the "Change of Control, the Issuer will send " shall be deemed to have occurred if:
(i) any "person," including a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise "group" as determined in accordance with the procedures set forth in this IndentureSection 13(d)(3) of the Securities Exchange Act of 1934 ("Exchange Act"), with a copy to is or becomes the Trustee:beneficial owner, directly or indirectly, of securities of Employer representing 30% or more of the combined voting power of Employer's then outstanding securities;
(1ii) stating that as a Change result of, or in connection with, any tender offer or exchange offer, merger or other business combination (a "Transaction"), the persons who were directors of Control has occurred or may occur and that such Holder has Employer before the right Transaction shall cease to require constitute a majority of the Issuer to purchase all Board of Directors of Employer or any part successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of such Holder’s Notes at a purchase price in cash equal to 101the merger or consolidation less than 70% of the principal amount outstanding voting securities of such Notes plus accrued and unpaid interest tothe surviving or resulting corporation shall then be owned in the aggregate by the former stockholders of Employer, but not includingother than (A) affiliates within the meaning of the Exchange Act, the date of purchase or (subject B) any party to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)merger or consolidation;
(2iv) stating a tender offer or exchange offer is made and consummated for the repurchase date (which shall be no earlier than 10 days from ownership of securities of Employer representing 30% or more of the date such notice is mailed nor later than the later combined voting power of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;Employer's then outstanding voting securities; or
(3v) stating that any Note accepted for payment pursuant Employer transfers substantially all of its assets to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment another corporation which is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined controlled by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceEmployer.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions For purposes of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the mannerparagraph 6, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made "good reason" shall mean action taken by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent Employer that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.results in:
Appears in 4 contracts
Sources: Employment Agreement (Community Bank System Inc), Employment Agreement (Community Bank System Inc), Employment Agreement (Community Bank System Inc)
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the outstanding Notes pursuant to as set forth under Section 3.07 5.6(a) or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control5.6(d), the Issuer will send a notice Company shall make an offer (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s the Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date. Within 30 days following any Change of Control, the Company will deliver or cause to be delivered notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that of $2,000 or an integral multiple of $1,000 in excess thereof (and, if PIK Interest is at least elected to be paid, in minimum principal amount of $200,000 2,000 and integral multiples of $1,000 1.00 in excess thereof). The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.6 hereof unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is .
(e) While the Notes are in place for global form and the Change Issuer makes an offer to purchase all of Control at the time of making of Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(f) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 4 contracts
Sources: Indenture (Carvana Co.), Indenture (Carvana Co.), Indenture (Carvana Co.)
Change of Control. (a) If Except with respect to Competitors of Buyer, Seller may assign this Agreement without the written consent of Buyer to a corporation or other business entity in a Change of Control. In connection with a Change of Control, Seller may not assign this Agreement to any Competitor of Buyer without Buyer’s prior written consent. Seller will provide Buyer with written notice of any Change of Control occurs, subject to the terms (a “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part Control Notice”) within seven (equal to $200,000 or an integral multiple of $1,000 in excess thereof7) days of such Holder’s Notes at a purchase price Change of Control, but in cash equal to 101% of no event later than the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions closing related to such redemption have been satisfied or waived. No such purchase Change in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000Control.
(b) Unless the Issuer has unconditionally exercised its right Buyer, without liability other than Buyer’s obligations under Section 3(d), may terminate this Agreement (together with all outstanding Orders hereunder) upon giving written notice as stated below:
(i) if Seller fails to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to provide Buyer with a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice Notice within seven (the “Change of Control Offer”7) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow , but in no event later than the closing related to accept a such Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offerin Control;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
within thirty (330) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct days from its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result receipt of a Change of Control may Notice from Seller if such Change of Control involves an Acquirer who is a Competitor of Buyer; [...***...]; or
(iii) if Seller, an Acquirer or any of their successors or assigns becomes, directly or indirectly, a Competitor of Buyer [...***...], by providing written notice of its intention to terminate this Agreement (together with all outstanding Orders hereunder) within sixty (60) days of: (A) Seller notifying Buyer in writing that it, an Acquirer or any of their successors or assigns has become or a Competitor of Buyer or (B) Buyer’s actual knowledge that Seller, an Acquirer or any of their successors or assigns has become a Competitor of Buyer. In no event will Seller, an Acquirer or any of their successors or assigns be waived or modified with entitled to any termination costs in the written consent of holders of a majority in outstanding principal amount of the Notesevent that Buyer exercises its termination rights under this Section.
Appears in 4 contracts
Sources: Supply Agreement, Supply Agreement (Tpi Composites, Inc), Supply Agreement (Tpi Composites, Inc)
Change of Control. (a) 3.7.1 If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating the Optionholder’s employment is terminated by the Corporation without Cause, including a constructive dismissal, the Optionholder may exercise all of the Options (including, for greater certainty, the Options that had vested as at the Change Date of Control Offer is conditional Termination and the Options that had not yet vested as at the Date of Termination), notwithstanding Section 3.1, during the period ending on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceExpiry Date, after which the Options will expire.
3.7.2 If a “take-over bid” (cwithin the meaning of applicable securities legislation) The Issuer shall cause to be published made by any person for the notice described above through voting securities of the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In additionCorporation would, if any Notes are listed on an exchangesuccessful, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment result in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change then:
(a) the Corporation will promptly notify the Optionholder of Controlthe take-over bid and the rights of the Optionholder under this Section;
(b) the Optionholder may exercise the Options (including, if a definitive agreement is in place for greater certainty, the Change of Control Options that had vested as at the time Date of making Termination and the Options that had not yet vested as at the Date of Termination), during the period ending on the earlier of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) expiration of the Exchange Act take-over bid and any other securities laws or regulations in connection with the repurchase Expiry Date;
(c) the exercise of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureOptions (including, for greater certainty, the Issuer will comply with Options that had vested as at the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change Date of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer Termination and the Issuer, or any third party making a Change Options that had not yet vested as at the Date of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, Termination) shall only be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption depositing the Optioned Shares pursuant to this Section 4.03 the take-over bid; and
(d) if the Optioned Shares are not deposited by the Optionholder pursuant to the take-over bid or, if deposited, are subsequently withdrawn by the Optionholder or not all taken up and paid for by the offeror, then the Optionholder shall promptly return the Optioned Shares (or the portion that are not taken up and paid for) to the Corporation for cancellation, the Options respecting such Optioned Shares shall be made in accordance with Section 3.03 (other than deemed not to have been exercised, the time periods specified therein, which Optioned Shares shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating deemed not to have been issued and the Corporation shall refund to the Issuer’s obligation to make an offer to repurchase Optionholder the Notes as a result of a Change of Control may be waived or modified with aggregate Exercise Price for the written consent of holders of a majority in outstanding principal amount of the NotesOptioned Shares.
Appears in 4 contracts
Sources: Option Agreement (Canadian Pacific Railway LTD/Cn), Stand Alone Option Agreement (Canadian Pacific Railway LTD/Cn), Stand Alone Option Agreement (Canadian Pacific Railway LTD/Cn)
Change of Control. (a) If a Change of Control occurs, subject unless a third party makes a Change of Control Offer or the Issuers have previously or substantially concurrently therewith delivered a redemption notice with respect to all the terms of this outstanding Notes under Section 4.035.7, each Holder will have the right Issuers shall make an offer to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to the offer described in this Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice 3.9 (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest (including Additional Amounts, if any), if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive interest on the repurchase date. Within 30 days following any Change of Control, the Issuers will deliver or cause to be delivered a notice of such Change of Control Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control and with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuers;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after delivered, except in the case of a conditional Change of Control) Control Offer made in advance of a Change of Control as described in clause (8) below (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission, letter or electronic mail setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e.
(d) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. [Reserved].
(e) To the extent that the provisions of any securities laws laws, rules or regulations regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will Issuers shall not be deemed to have breached its their obligations under the Change of Control provisions of described in this Indenture by virtue of compliance therewith. The Issuers may rely on any no-action letters issued by the conflictSEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(hf) If Holders For the avoidance of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holdersdoubt, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating related to the Issuer’s Issuers’ obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders the Holders of a majority in outstanding principal amount of the then outstanding Notes.
Appears in 4 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership), Indenture (Restaurant Brands International Limited Partnership)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer Issuers to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer Issuers shall not be obliged to repurchase Notes as described under this Section 4.03 4.03, in the event and to the extent that it has they have unconditionally exercised its their right to redeem all of the Notes pursuant to as described under Section 3.07 5 of the Notes or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has Issuers have unconditionally exercised its their right to redeem all the Notes pursuant to as described under Section 3.07 5 of the Notes or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer Issuers will send mail a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this IndentureNotes, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer Issuers to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Controlmailed) (the “Change of Control Payment Date”) and the record date;
(3) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(4) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes Note or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the IssuerIssuers, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;; and
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer Issuers will, to the extent lawful:
(1) accept for payment all or part of the Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of the Notes or portions of the Notes thereof being purchased by the Issuer Issuers in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the IssuerIssuers; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. Issuers.
(d) If any Definitive Registered Notes have been issued, the relevant Paying Agent, at the Issuer’s expense, Agent will promptly mail to each Holder holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent authenticate (or cause to authenticate and, at the Issuer’s expense, be authenticated) and mail (or cause to be transferred by book-book entry) to each Holder holder of Definitive Registered Notes a new Definitive Registered Note equal in aggregate principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control; provided that the purchase date will be no earlier than 30 days from the date a notice of such Change of Control Offer is mailed.
(f) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fg) The Issuer Issuers will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gh) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations (or rules of any exchange on which the Notes are then listed) in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations (or exchange rules) conflict with provisions of this Indenture, the Issuer Issuers will comply with the applicable securities laws and regulations (or exchange rules) and will not be deemed to have breached its obligations obligations, or require a repurchase of the Notes, under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 4 contracts
Sources: Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.), Senior Indenture (NXP Semiconductors N.V.)
Change of Control. 19.1 Prosensa wishes to give the Management Board Member some degree of protection in the case of a change of control. Upon a change of control as defined in paragraph 19.2 below (a“Change of Control”), the Management Board Member will be entitled to a lump sum payment per paragraph 19.4 below if one of the events described in paragraph 19.3 below occurs.
19.2 A Change of Control shall mean any event by which a party, or several parties related to each other, affiliated with each other and/or acting jointly, (“Acquirer”) If obtain control over Prosensa, in particular (without limitation) ownership, directly or indirectly, legally or beneficially, of more than 50% of the capital stock or the assets of Prosensa, or the power to exercise more than 50% of the voting rights of Prosensa, or the power to appoint more than 50% of the members of the board of Prosensa or such other body which is legally representing Prosensa, or the right to manage the affairs of Prosensa. In case that Prosensa’s shares are listed on a stock exchange, the aforementioned threshold of (more than) 50% shall be replaced by 30% or such other threshold which accurately reflects control in a listed company. It is agreed that the following events shall not be considered a Change of Control occurs, subject to the terms for purposes of this Section 4.03, each Holder will have Employment Contract: (i) the right to require the Issuer to repurchase all or any part (equal to $200,000 or acquisition of control over Prosensa as a non-listed company by an integral multiple of $1,000 Acquirer who is already shareholder in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control Prosensa at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions conclusion of this Indenture, Employment Contract or (ii) a capital increase of Prosensa as a non-listed company by which a venture capital investor which is not already shareholder in Prosensa at the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change time of Control provisions conclusion of this Indenture by virtue Employment Contract (“Third Party VC Investor”) assumes control over Prosensa (unless the venture capital investors of the conflict.
(h) If Holders of not less than 90% Prosensa holding shares in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase Prosensa at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with of conclusion of this Section 4.03Employment Contract sell their shares to such Third Party VC Investor within 12 months after such Third Party VC Investor’s obtaining control over Prosensa).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 4 contracts
Sources: Employment Contract (Prosensa Holding N.V.), Employment Contract (Prosensa Holding N.V.), Employment Contract (Prosensa Holding N.V.)
Change of Control. (a) If a Change of Control occurs, subject unless the Borrower has previously or concurrently delivered or mailed a prepayment notice with respect to all the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes outstanding Loans as described under this Section 4.03 in 2.05 hereof, the event and Borrower shall make an offer to the extent that it has unconditionally exercised its right to redeem purchase all of the Notes Loans pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to offer described below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 100% of the aggregate principal amount thereof if such Change of Control occurs on or prior to the Initial Maturity Date or 101% of the aggregate principal amount thereof if the Change of Control occurs after the Initial Maturity Date, in each case plus accrued and unpaid interest, if any, to, but excluding, the date of prepayment. Within 30 days following any Change of Control, the Borrower shall deliver or mail notice of such Change of Control Offer electronically or by first-class mail to the Administrative Agent, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 6.18;
(2) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”), except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described in Section 6.18(d) and the record datebelow;
(3) stating that any Note Loan not prepaid shall remain outstanding and continue to accrue interest;
(4) that unless the Borrower defaults in the payment of the Change of Control Payment, all Loans accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of ControlDate;
(5) describing that Lenders shall be entitled to withdraw their election to require the procedures determined by Borrower to purchase such Loans; provided that the IssuerAdministrative Agent receives, consistent with this Indenturenot later than the close of business on the expiration date of the Change of Control Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Lender, the principal amount of Loans tendered for purchase, and a statement that a Holder must follow in order such Lender is withdrawing its election to have its Notes repurchasedsuch Loans purchased;
(6) the other instructions, as determined by the Borrower, consistent with the covenant described hereunder, that a Lender must follow; and
(7) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on upon the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willBorrower shall, to the extent lawfulpermitted by law:
(1) accept for payment all Notes or portion thereof Loans that properly tendered pursuant to accepted the Change of Control Offer;
(2) deposit with the Paying Administrative Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes Loans that so tendered;accepted; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Administrative Agent an Officer’s Certificate to the applicable Global Notes in order to reflect thereon the portion of Trustee stating that such Notes or portions thereof that Loans have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofBorrower.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer will Borrower shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture Agreement applicable to a Change of Control Offer made by the Issuer Borrower and purchases repays all Notes validly tendered and not validly withdrawn under Loans that accept such Change of Control Offer.
(gd) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent ; provided that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not purchase date shall be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more no earlier than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding from the date of the delivery of the a notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Offer is mailed.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 4 contracts
Sources: Credit Agreement (Polymer Group Inc), Senior Unsecured Bridge Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc)
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes as described under SECTION 5.7, the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase repurchase; provided that (subject to 1) if the right of Holders of record repurchase date is on or after the relevant record date to receive interest due and on or before the relevant corresponding interest payment date), then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date; provided, however, that and (2) if the Issuer shall Company delivered a redemption notice but subsequently did not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the outstanding Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part the terms of this Indenture, then the Company shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to make a Change of Control Offer and otherwise comply with the terms of this SECTION 3.9. Within 30 days following the public announcement thereof or if a definitive agreement is in place for the any Change of Control, the Issuer Company will send deliver or cause to be delivered a notice (the “of such Change of Control Offer”) to each Holder of any such Notes by mail or otherwise , electronically in accordance with the applicable procedures set forth in this Indentureof DTC or by first-class mail, with a copy to the Trustee:
(1) stating , to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that a constitute the Change of Control has occurred or may occur and that such Holder has offering to repurchase the right to require Notes for the Issuer to purchase all or any part of such Holder’s Notes at a specified purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, on the date of purchase (subject to specified in the right of Holders of record on a record notice, which date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall will be no earlier than 10 30 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed delivered, pursuant to the procedures required by this Indenture and described in such notice, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below:
(1) that a Change of Control Offer is being made pursuant to this SECTION 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days after from the Change of Control) date such notice is delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Company default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $100.00 or any integral multiple of $1.00;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Company, consistent with this SECTION 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-book entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 100.00 or an integral multiple of $1.00. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in excess thereofwhose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Company.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (gii) a notice of redemption of all outstanding Notes has been given pursuant to SECTION 5.7 hereof, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this SECTION 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, .
(d) Notwithstanding anything to the extent applicablecontrary in this Indenture, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with any tender offer for the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureNotes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the including a Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer such tender offer and the IssuerCompany, or any third party making a Change of Control Offer such tender offer in lieu of the Issuer in accordance with this Section 4.03Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Company or such third party will have the right, right upon not less than 10 nor more than 60 days’ prior Company notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described abovedate, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof plus price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest to interest, if any, thereon, to, but excluding not including, the date of such redemption.
(e) While the delivery Notes are in global form and the Company make an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer Notes through the facilities of DTC, subject to its rules and regulations.
(f) To the extent that the provisions of any securities laws, rules or by funds controlled or managed by any Affiliate regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Issuer, or any successor thereof, Company will comply with the applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to by virtue thereof. The Company may rely on any no-action letters issued by the Issuer’s obligation to make an offer to repurchase SEC indicating that the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount staff of the NotesSEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
Appears in 4 contracts
Sources: Indenture (iHeartMedia, Inc.), Indenture (iHeartMedia, Inc.), Indenture (Broader Media Holdings, LLC)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to there occurs a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change any holder of Control Offer”) to each Holder record of any such Notes by mail or otherwise shares of Series B Preferred Stock, in accordance with the procedures set forth in Section E of this IndentureArticle V, with a copy may require the Corporation to redeem any or all of the shares of Series B Preferred Stock held by such holder in an amount per share equal to the Trustee:
sum of (1i) stating that a the amount, if any, of all unpaid dividends accumulated thereon to the date of actual payment thereof, whether or not such dividends have been declared, and (ii) 101% of Stated Value (the "Change of Control has occurred or may occur Price"). By accepting a share of Series B Preferred Stock the holder thereof shall be deemed to have acknowledged and agreed that (a) such Holder has the right holder's right, to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% receive payment of the principal amount Change in Control Price is subject and subordinated in right of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject payment to the payment in full and discharge of all amounts of principal, interest and fees (however denominated) then outstanding under the Credit Agreement and the Senior Subordinated Notes and (b) until payment in full of all such amounts (however denominated) under the Credit Agreement and the Senior Subordinated Notes has been made in cash, no payment, whether directly or indirectly, by exercise of any right of Holders set off or otherwise in respect of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease Price shall be made by the Corporation, and, notwithstanding anything to accrue interest after the contrary in Section F of this Article V, no deposit in respect of the Change of Control Payment Date unless Price shall be made pursuant to Section F of this Article V. In the Change event that any payment by, or distribution of Control Payment the assets of, the Corporation of any kind or character (whether in cash, property or securities, whether directly or indirectly, by exercise of any right of set-off or otherwise and whether as a result of a bankruptcy proceeding with respect to the Corporation or otherwise) shall be received by a holder of Series B Preferred Stock at any time when such payment is not paidprohibited by this paragraph, such payment shall be held in trust for the benefit of, and that any Notes shall be paid over to, the lenders under the Credit Agreement or part thereof not tendered will continue the holders of Senior Subordinated Notes, as the case may be, as their interests may appear. The preceding two sentences address the relative rights of holders of Series B Preferred Stock or Debentures, on the one hand, and the lenders under the Credit Agreement or the holders of Senior Subordinated Notes, as the case may be, on the other hand, and nothing in this Certificate of Designations shall impair, as between the Corporation and the holders of Series B Preferred Stock or Debentures, the obligation of the Corporation, which is absolute and unconditional, to accrue interest;
(4) describing pay amounts due in respect of the circumstances Series B Preferred Stock and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Debentures in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of their terms. Upon a Change of Control, stating that the Change of Control Offer is conditional on Corporation shall pay all amounts outstanding under the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, Credit Agreement and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, Indenture to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes necessary in order to reflect thereon permit the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making payment of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictPrice hereunder.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (TPG Advisors Ii Inc)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to after the terms of this Section 4.03Issue Date, each Holder will have the right to require the Issuer Issuers to repurchase purchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101101.0% of the principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and except to the extent that it has unconditionally exercised its right the Issuers have previously elected to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,0005.1.
(b) Unless Within 30 days following any Change of Control, except to the Issuer has unconditionally extent that the Issuers have exercised its their right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control5.1, the Issuer Issuers will send deliver a notice (the a “Change of Control Offer”) to each Holder of any such Notes by mail with a copy to the Trustee, or otherwise in accordance with the procedures set forth in this IndentureApplicable Procedures of the Depositary, with a copy to the Trusteedescribing:
(1i) stating that a Change of Control has occurred or may occur or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has has, or upon such occurrence will have, the right to require the Issuer Issuers to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101101.0% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, if any, to (but not including, ) the date of purchase (subject to the right of Holders of record on a record date Record Date to receive interest on the relevant interest payment date) (the “Change of Control Payment”Interest Payment Date);
(2ii) stating the repurchase date transaction or transactions that constitute, or are expected to constitute, such Change of Control;
(iii) the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3iv) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders will be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuers to purchase such Notes; provided that the transaction or transactions that constitute paying agent receives, not later than the expiration time of the Change of ControlControl Offer, a facsimile transmission, pdf communication sent via electronic means or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased and a description of reasonable detail of any conditions precedent applicable to such withdrawal;
(5viii) describing that if the procedures determined by Issuers are redeeming less than all of the IssuerNotes, consistent with this Indenture, that a Holder the Holders of the remaining Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must follow be equal to $2,000.00 or an integral multiple of $1.00 in order to have its Notes repurchasedexcess thereof;
(6ix) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7x) certain the other procedures instructions determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow in order to accept a Change of Control Offer or to withdraw such acceptancehave its Notes purchased.
(c) The Issuer shall cause to be published While the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, in global form and the rules Issuers make an offer to purchase all of the exchange so require, Notes pursuant to the Issuer will notify the exchange of the results of any Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes to be made through the facilities of the Depositary in accordance with the Applicable Procedures of the Depositary. A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of such Change of Control.
(d) The Issuers will comply, to the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 3.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 3.9, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached their obligations under this Section 3.9 by virtue of such compliance.
(e) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer Issuers will, to the extent lawful:permitted by law,
(1i) accept for payment all Notes issued by them or portion portions thereof properly validly tendered and not withdrawn pursuant to the Change of Control Offer;; and
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; andIssuers.
(5f) in On the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered Business Day immediately preceding the Change of Control Payment Date, the Issuers will deposit with the Paying Agent in an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered.
(g) Holders electing to have a Note purchased will be required to surrender the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders will be entitled to withdraw their election if the Trustee or the Issuers receive not later than one Business Day prior to the expiration of the Change of Control Offer, facsimile transmission, pdf communication sent via electronic means or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was delivered for purchase by the Holder and a statement that such NotesHolder is withdrawing his selection to have such Note purchased.
(h) On the Change of Control Payment Date, all Notes purchased by the Issuers under this Section 3.9 will be delivered by the Issuers to the Trustee for cancellation, and the Trustee Issuers will promptly instruct its authenticating agent pay the purchase price plus accrued and unpaid interest, if any, to authenticate andthe Holders entitled thereto. With respect to any Note purchased in part, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes Issuers will issue a new Definitive Registered Note equal in a principal amount equal at maturity to the unpurchased portion of the Notes surrendered, if any; provided that each such new original Note will be in a principal amount that is at least $200,000 and integral multiples the name of $1,000 in excess thereofthe Holder upon cancellation of the original Note.
(ei) This Section 4.03 will be applicable whether or not any other Notwithstanding the foregoing provisions of this Indenture are applicable.
(f) The Issuer Section 3.9, the Issuers will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gj) Notwithstanding anything Prior to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate each of the Issuer or by funds controlled or managed by any Affiliate Issuers will deliver to the Trustee an Officer’s Certificate stating that all conditions precedent contained herein to the right of each of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation Issuers to make an such offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Noteshave been complied with.
Appears in 3 contracts
Sources: Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC)
Change of Control. (a) If a Change of Control occurs:
(i) the Company shall promptly notify the Agent upon becoming aware of that Change of Control (the "Change of Control Notice") and the Agent shall promptly notify the Lenders accordingly; and
(ii) each Lender shall be entitled to cancel its Commitments and require repayment of all of its share of the Utilisations and payment of all amounts owing to it under the Finance Documents, subject in each case by notification to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part Agent within thirty (equal to $200,000 or an integral multiple of $1,000 in excess thereof30) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to days after the date of purchase the Change of Control Notice (subject the "Change of Control Put Option Period"), whereupon:
(A) the undrawn Commitments of such Lender shall, by no less than five (5) Business Days' prior notice to the right Company (or, in the case that a Change of Holders of record Control which results from a Listing, on the relevant record settlement date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and respect of such Listing to the extent that it such Lender has unconditionally exercised its right provided a prepayment notice to redeem all the Agent at least five (5) Business Days prior to such settlement date), be cancelled and such Lender shall have no obligation to fund or participate in any new Utilisation (in each case other than a Rollover Loan); and
(B) on the date falling thirty (30) days after the expiry of the Notes pursuant to Section 3.07 Change of Control Put Option Period (or, in the case that a Change of Control which results from a Listing, if later, on the settlement date in respect of such Listing), all outstanding Utilisations provided by such Lender, together with accrued interest, and all other amounts accrued or all conditions owing to such redemption have been satisfied Lender under the Finance Documents shall become immediately due and payable, and the relevant Borrower will immediately prepay all Utilisations and amounts provided by or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held owing to that Lender and procure that any cash collateral provided by any holder to below $200,000that Lender is released.
(b) Unless If a Lender has not notified the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise Agent in accordance with the procedures set forth in this Indenture, with a copy to provisions of paragraph (a) above by the Trustee:
(1) stating that a end of the Change of Control has occurred Put Option Period in respect of that Change of Control (only), that Lender shall not be able to cancel its Commitments or may occur and that such Holder has the right to require the Issuer to purchase repayment of all or any part of such Holder’s Notes at a purchase price in cash equal to 101% its share of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) Utilisations and the record date;
(3) stating that prepayment of any Note accepted for payment other amount owing to it under the Finance Document, in each case pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
paragraph (4a) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceabove.
(c) The Issuer shall cause to be published For the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions purposes of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the mannerClause 8.1, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a "Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes." means:
Appears in 3 contracts
Sources: Senior Facilities Agreement (Atlas Investissement), Senior Facilities Agreement (Atlas Investissement), Senior Facilities Agreement (Atlas Investissement)
Change of Control. (a) If In connection with a Change of Control occursControl, and subject to any approval of the terms Change of this Section 4.03Control by the holders of Class A Common Stock, each Holder will Class M Common Stock, Class O Common Stock and Class V Common Stock that may be required:
(i) PubCo shall have the right to require each Member (other than PubCo and its Subsidiaries) to effectuate a Redemption by the Issuer Company of some or all of such Member’s Redeemable Units, relating to repurchase a corresponding number of shares of Class V Common Stock or Class O Common Stock after taking into account the Exchange Rate (in each case, free and clear of all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofLiens) of such Holder’s Notes at Member, in each case, in exchange for the delivery to such Member (or its designee) of (1) in the case of a purchase price in cash corresponding number of shares of Class V Common Stock, a number of shares of Class M Common Stock that is equal to 101% the product of the principal amount applicable Redeemed Unit Amount multiplied by the Exchange Rate and (2) in the case of a corresponding number of shares of Class O Common Stock, a number of shares of Class A Common Stock that is equal to the product of the Notesapplicable Redeemed Unit Amount multiplied by the Exchange Rate (such Redemption, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any a “Change of Control orRedemption”). However, at if PubCo elects to require such Member to redeem less than all of its outstanding Redeemable Units (and the Issuercorresponding number of shares of Class V Common Stock or Class O Common Stock after taking into account the Exchange Rate), such Member’s optionparticipation in the required Redemption shall be reduced pro rata based on ownership of Redeemable Units. For the avoidance of doubt, at any time prior Redeemable Units that are not redeemed pursuant to a Change of Control following Redemption may be caused to be redeemed by the public announcement thereof or if a definitive agreement is in place for Member after the Change of Control, the Issuer will send a notice (the “Change of Control Offer”transaction pursuant to Section 9.1(a) subject to each Holder of any such Notes by mail or otherwise and in accordance with the procedures set forth in terms of Section 9.1(a).
(ii) The election of PubCo pursuant to this Indenture, with Section 9.1(b) shall be at the sole discretion of PubCo upon the approval by a copy majority of the board of directors of PubCo.
(iii) Any Redemption pursuant to this Section 9.1(b) shall be effective immediately prior to the Trustee:
(1) stating that a consummation of the Change of Control has occurred or may occur and that (and, for the avoidance of doubt, shall not be effective if such Holder has the right to require the Issuer to purchase all or any part Change of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but Control is not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment dateconsummated) (the “Change of Control PaymentRedemption Date”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed . From and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless Redemption Date, such Member shall cease to have any rights with respect to the Redeemable Units (and the corresponding number of shares of Class V Common Stock or Class O Common Stock to be cancelled) that are subject to the Redemption pursuant to this Section 9.1(b) (other than the right to receive shares of Class M Common Stock or Class A Common Stock pursuant to Section 9.1(b)(i) upon compliance with its obligations under Section 9.1(c)).
(iv) PubCo shall provide written notice of an expected Change of Control to each Member within the earlier of (x) five Business Days following the execution of the agreement with respect to such Change of Control and (y) 10 Business Days before the proposed date upon which the contemplated Change of Control is to be effected, indicating in such notice such information as may reasonably describe the Change of Control Payment is not paidtransaction, and that any Notes or part thereof not tendered will continue subject to accrue interest;
(4) describing applicable law, including the circumstances and relevant facts regarding the transaction or transactions that constitute the Change date of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence execution of such Change agreement or such proposed effective date, as applicable, the amount and types of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause consideration to be published the notice described above through the newswire service paid for Redeemable Units and shares of Bloomberg (Class V Common Stock, shares of Class M Common Stock, shares of Class O Common Stock or if Bloomberg does not then operateshares of Class A Common Stock, any similar agency). In additionas applicable, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case which consideration shall be equivalent whether paid for Redeemable Units and shares of Global NotesClass V Common Stock, delivershares of Class M Common Stock, shares of Class O Common Stock or cause shares of Class A Common Stock), any election with respect to types of consideration that a holder of Redeemable Units and shares of Class V Common Stock, shares of Class M Common Stock, shares of Class O Common Stock or shares of Class A Common Stock, as applicable, shall be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required entitled to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance connection with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such the percentage of total Redeemable Units and shares of Class V Common Stock, shares of Class M Common Stock, shares of Class O Common Stock or shares of Class A Common Stock, as applicable, to be transferred to the acquirer by all stockholders in the Change of Control, if a definitive agreement is in place and the number of Redeemable Units and shares of Class V Common Stock or Class O Common Stock held by each Member that PubCo intends to require to be redeemed for the Change shares of Control at the time of making of the Change of Control Offer. The Issuer will complyClass M Common Stock or Class A Common Stock, to the extent as applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase Change of Notes pursuant Control. PubCo shall update such notice from time to this Section 4.03time to reflect any material changes to such notice. To PubCo may satisfy any such notice and update requirements described in the extent that the provisions of any securities laws preceding two sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9, Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A, Registration Statement on Form S-4, or regulations conflict with provisions of this Indenture, the Issuer will comply similar form filed with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictSEC.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Bitcoin Depot Inc.), Limited Liability Company Agreement (GSR II Meteora Acquisition Corp.), Limited Liability Company Agreement (GSR II Meteora Acquisition Corp.)
Change of Control. (a) If Upon the occurrence of a Change of Control occursControl, subject the Issuers will make an Offer to Purchase all of the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s outstanding Notes at a purchase price Purchase Price in cash equal to 101% of the principal amount tendered, together with accrued interest, if any, to the Purchase Date. For purposes of the Notesforegoing, plus accrued and unpaid interest an Offer to Purchase shall be deemed to have been made if (i) within 30 days following the date of purchase the consummation of a transaction or series of transactions that constitutes a Change of Control, the Issuers commence an Offer to Purchase all outstanding Notes at the Purchase Price (subject provided that the running of such 30-day period shall be suspended, for up to a maximum of 30 days, during any period when the commencement of such Offer to Purchase is delayed or suspended by reason of any court's or governmental authority's review of or ruling on any materials being employed by the Issuers to effect such Offer to Purchase, so long as the Issuers have used and continue to use their best efforts to make and conclude such Offer to Purchase promptly) and (ii) all Notes properly tendered pursuant to the right of Holders of record Offer to Purchase are purchased on the relevant record date terms of such Offer to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000Purchase.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer Issuers will not be required to make a Change of Control an Offer to Purchase upon a Change of Control if a third party makes the such Offer to Purchase contemporaneously with or upon a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in of this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer to Purchase.
(gc) Notwithstanding anything On the Purchase Date, the Issuers shall, to the contrary hereinextent lawful, (i) accept for payment Notes or portions thereof or beneficial interests under a Global Note properly tendered pursuant to the Offer to Purchase, (ii) deposit with the Paying Agent (by no later than 1:00 p.m. on such date) money sufficient to pay the Purchase Price of all Notes or portions thereof or beneficial interests so tendered and (iii) deliver or cause to be delivered to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to the Issuers. The Paying Agent shall promptly (1) mail to each holder of Notes so accepted and (2) remit to the Depository for crediting to the respective accounts of the Holders under a Global Note of beneficial interest so accepted, payment in an amount equal to the purchase price for such Notes (which payment shall, in the case of the Holders of beneficial interests in a Global Note, be through the facilities of the Depository), and the Issuers shall execute and issue, and the Trustee shall promptly authenticate and mail to such holder, a Change new Note equal in principal amount to any unpurchased portion of Control the Notes surrendered and shall issue a Global Note equal in principal amount to any unpurchased portion of beneficial interest so surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $1,000 and integral multiples thereof.
(d) If the Company or any Subsidiary thereof has issued any outstanding (A) Debt that is subordinated in right of payment to the Notes or (B) Preferred Interests, and the Company or such Subsidiary is required to make a Offer may be made to Purchase or to make a distribution with respect to such subordinated Debt or Preferred Interests in advance the event of a Change of Control, conditional upon the Company shall not consummate any such Change offer or distribution with respect to such subordinated Debt or Preferred Interests until such time as the Company shall have paid the Purchase Price in full to the holders of Control, if Notes that have accepted the Company's Offer to Purchase and shall otherwise have consummated the Offer to Purchase made to holders of the Notes. The Company will not issue Debt that is subordinated in right of payment to the Notes or Preferred Interests with change of control provisions requiring the payment of such Debt or Preferred Interests prior to making and consummating an Offer to Purchase the Notes in the event of a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. under this Indenture.
(e) The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Securities Exchange Act of 1934 and any other securities laws or regulations in connection with the any repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer as described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Petro Stopping Centers L P), Indenture (Petro Financial Corp), Indenture (Petro Stopping Centers Holdings Lp)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder of Notes will have the right to require the Issuer to repurchase all or any part (equal to $200,000 1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice an offer (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with on the procedures terms set forth in this Indenture, with a copy to . In the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require Offer, the Issuer to purchase all or any part of such Holder’s Notes at will offer a purchase price payment in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus accrued and unpaid interest tointerest, but not includingthereon, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”).
(b) Within 30 days following any Change of Control, the Issuer shall mail a notice to each Holder stating:
(i) that the Change of Control Offer is being made pursuant to this Section 4.09 and that all Notes tendered will be accepted for payment;
(2ii) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later amount of 60 days from the date such notice is mailed and 60 days after the Change of Control) Control Payment and the purchase date (the “Change of Control Payment Date”) and ), which may not be earlier than 30 days nor later than 60 days from the record datedate such notice is mailed;
(3iii) stating that any Note not tendered will continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment thereof, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date unless Date;
(v) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes to be purchased to the Paying Agent at the address specified in the notice prior to the close of business on the third business day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vi) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order Holders will be entitled to withdraw Notes they have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional tendered on the occurrence of terms and conditions set forth in such Change of Controlnotice; and
(7vii) certain other procedures that Holders whose Notes are being purchased only in part will be issued new Notes (or book-entry notation made with respect thereto) equal in principal amount to the unpurchased portion of the Notes tendered; provided that the portion of each Note purchased and each such new Note issued (or book-entry notation, if applicable) shall be in a holder principal amount of Notes must follow to accept a Change of Control Offer $1,000 or to withdraw such acceptancean integral multiple thereof.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1i) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control OfferOffer and not withdrawn;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered;tendered and not withdrawn; and
(3iii) deliver or cause to be delivered to the Trustee all Notes so accepted with an Officer’s Officers’ Certificate stating the aggregate principal amount of Notes or portions of the Notes thereof being purchased by the Issuer in the Change of Control Offer;Issuer.
(4d) in the case of Global Notes, deliver, or cause to be delivered, to the The Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-book entry) to each such Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided provided, that each such new Note will shall be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess or an integral multiple thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Broan-NuTone LLC), Indenture (Mammoth-Webco, Inc.), Indenture (Aigis Mechtronics, Inc.)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless the Issuer has given notice to redeem all of the terms of this Section 4.03outstanding Notes as described under Article 3, each Holder of such Notes will have the right to require that the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of the Notes, purchase plus accrued and unpaid interest interest, if any, to but not including the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date) (the “Change of Control Payment”); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control orRepurchase Event, at unless the Issuer’s option, at any time prior Issuer has previously or concurrently mailed (or otherwise delivered in accordance with the applicable procedures of DTC) a redemption notice with respect to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Controlall outstanding Notes as described under Article 3, the Issuer will send mail a notice by first-class mail (or otherwise delivered in accordance with the applicable procedures of DTC) to each Holder of the Notes with a copy to the Trustee (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trusteestating:
(1) stating that a Change of Control Repurchase Event has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, but not includingif any, to the date of purchase (subject to the right of Holders of record on a the relevant record date to receive interest on the relevant interest payment date) (the “Change of Control PaymentPayment Date”);
(2) stating the repurchase purchase date (which shall be no earlier than 10 15 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;sent); and
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paidinstructions, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures as determined by the Issuer, consistent with this IndentureSection 4.7, that a Holder must follow in order to have its Notes repurchased;
purchased. The notice shall, if delivered (6or otherwise delivered in accordance with the applicable procedures of DTC) if such notice is mailed prior to the occurrence date of a consummation of the Change of Control, stating state that the Change of Control Offer offer to purchase is conditional conditioned on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer Repurchase Event occurring on or prior to withdraw such acceptancethe payment date specified in the notice.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly portions of such Notes (of $200,000 or larger integral multiples of $1,000 in excess thereof) validly tendered and not validly withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of such Notes so tendered;accepted for payment; and
(3) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted for payment together with an Officer’s Certificate stating the aggregate principal amount of such Notes or portions of the such Notes being purchased by the Issuer in accordance with the Change terms of Control Offer;this Section 4.7.
(4d) in the case of Global Notes, deliver, or cause to be delivered, to the The Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered accepted for payment the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-book entry) to each such Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided provided, however, that each such new Note will be in a principal amount that is at least of $200,000 and or integral multiples of $1,000 in excess thereof. On and after the purchase date, interest will cease to accrue on the Notes or portions thereof purchased.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (2) a notice of redemption in respect of all of the outstanding Notes that is or has become unconditional has been given as described under Article 3.
(gf) Notwithstanding anything to the contrary herein, a A Change of Control Offer may be made in advance of a Change of Control, conditional upon such a Change of ControlControl Repurchase Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. In the event that the Change of Control has not occurred as of the purchase date for the Change of Control Offer specified in the notice therefor (or amendment thereto), the Issuer (or third party offeror) may, in its discretion, rescind such notice or amend it to specify another purchase date.
(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this IndentureSection 4.7, the Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.7 by virtue of the conflictits compliance with such securities laws or regulations.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Alcoa Corp), Indenture (Alcoa Corp), Indenture (Alcoa Corp)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuers have previously or concurrently delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Issuers shall make an offer to purchase all of the Notes pursuant to the terms of offer described in this Section 4.03, each Holder will have 3.9 (the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest (including Additional Amounts, if any), if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer Issuers will send a deliver notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of any Notes at the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, describing the transaction or transactions that constitute the Change of Control and with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuers;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after delivered, except in the case of a conditional Change of Control) Control Offer made in advance of a Change of Control as described in clause (8) below (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(d) [Reserved].
(e) The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of Canadian Securities Legislation and Rule 14e-1 under the Exchange Act and any other securities laws laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer Issuers will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Restaurant Brands International Limited Partnership), Indenture (Burger King Worldwide, Inc.), Indenture (New Red Canada Partnership)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to there occurs a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change any holder of Control Offer”) to each Holder record of any such Notes by mail or otherwise shares of Series A Preferred Stock, in accordance with the procedures set forth in Section E of this IndentureArticle V, with a copy may require the Corporation to redeem any or all of the shares of Series A Preferred Stock held by such holder in an amount per share equal to the Trustee:
sum of (1i) stating that a the amount, if any, of all unpaid dividends accumulated thereon to the date of actual payment thereof, whether or not such dividends have been declared, and (ii) 101% of Stated Value (the "Change of Control has occurred or may occur Price"). By accepting a share of Series A Preferred Stock the holder thereof shall be deemed to have acknowledged and agreed that (a) such Holder has the right holder's right, to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% receive payment of the principal amount Change in Control Price is subject and subordinated in right of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject payment to the payment in full and discharge of all amounts of principal, interest and fees (however denominated) then outstanding under the Credit Agreement and the Senior Subordinated Notes and (b) until payment in full of all such amounts (however denominated) under the Credit Agreement and the Senior Subordinated Notes has been made in cash, no payment, whether directly or indirectly, by exercise of any right of Holders set off or otherwise in respect of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease Price shall be made by the Corporation, and, notwithstanding anything to accrue interest after the contrary in Section F of this Article V, no deposit in respect of the Change of Control Payment Date unless Price shall be made pursuant to Section F of this Article V. In the Change event that any payment by, or distribution of Control Payment the assets of, the Corporation of any kind or character (whether in cash, property or securities, whether directly or indirectly, by exercise of any right of set-off or otherwise and whether as a result of a bankruptcy proceeding with respect to the Corporation or otherwise) shall be received by a holder of Series A Preferred Stock at any time when such payment is not paidprohibited by this paragraph, such payment shall be held in trust for the benefit of, and that any Notes shall be paid over to, the lenders under the Credit Agreement or part thereof not tendered will continue the holders of Senior Subordinated Notes, as the case may be, as their interests may appear. The preceding two sentences address the relative rights of holders of Series A Preferred Stock or Debentures, on the one hand, and the lenders under the Credit Agreement or the holders of Senior Subordinated Notes, as the case may be, on the other hand, and nothing in this Certificate of Designations shall impair, as between the Corporation and the holders of Series A Preferred Stock or Debentures, the obligation of the Corporation, which is absolute and unconditional, to accrue interest;
(4) describing pay amounts due in respect of the circumstances Series A Preferred Stock and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Debentures in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of their terms. Upon a Change of Control, stating that the Change of Control Offer is conditional on Corporation shall pay all amounts outstanding under the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, Credit Agreement and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, Indenture to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes necessary in order to reflect thereon permit the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making payment of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictPrice hereunder.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (TPG Advisors Ii Inc), Investment Agreement (TPG Advisors Ii Inc)
Change of Control. (a) If Upon the occurrence of a Change of Control, the Issuer shall make an offer (a “Change of Control occurs, subject Offer”) to the terms of this Section 4.03, each Holder will have the right to require the Issuer of Notes to repurchase all or any part (equal to $200,000 1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notesthereof, plus together with accrued and unpaid interest thereon to the date of purchase repurchase (subject to the right rights of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all payments of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant related interest payment date) (in either case, the “Change of Control Payment”). Within 30 days following any Change of Control, the Issuer shall send or otherwise deliver a notice to each Holder electronically in accordance with the procedures of the depository or by first-class mail with a copy to the Trustee stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.15;
(2) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from and not later than 60 days after the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) sent (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note Notes not tendered shall continue to accrue interest in accordance with the terms of this Indenture;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of ControlDate;
(5) describing that Holders shall be entitled to withdraw their election if the procedures determined by paying agent receives, not later than the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence close of a Change of Control, stating that the Change of Control Offer is conditional business on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On second Business Day preceding the Change of Control Payment Date, if a notice sent electronically in accordance with the Change procedures of Control shall have occurredthe depository or by first-class mail setting forth the name of the Holder, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the delivered for purchase, and a statement that such Holder is unconditionally withdrawing its election to have such Notes being purchased by the Issuer in the Change of Control Offerpurchased;
(46) that Holders whose Notes are being purchased only in the case of Global Notes, deliver, or cause to part shall be delivered, to the Paying Agent the applicable Global issued new Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will which unpurchased portion must be equal to $2,000 in a principal amount that is at least $200,000 and or an integral multiples multiple of $1,000 in excess thereof.; and
(e7) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) information material to such Holder’s decision to tender Notes. The Issuer will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes required in the event of a Change of Control. The Issuer shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Issuer. The Issuer’s obligations in respect of a Change of Control Offer.
(g) Offer can be modified with the consent of Holders of a majority of the aggregate principal amount of Notes then outstanding at any time prior to the occurrence of a Change of Control. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Akumin Inc.), Restructuring Support Agreement (Akumin Inc.), Indenture (Akumin Inc.)
Change of Control. (a) If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7 that is or has become unconditional and subject to the terms of this Section 4.033.9(c) or under Article XI, each Holder will have the right to require the Issuer shall make an offer to repurchase purchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (repurchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) to each Holder of any such Notes Offer electronically or by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control and including the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed 20 Business Days nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or accepted for payment will remain outstanding and continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (with the unpurchased portion of the Notes required to be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000);
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Depositary. If the Change of Control Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no other interest, if any, shall be payable to Holders who tender Notes pursuant to the Change of Control Offer.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer and directing the Trustee to cancel such Notes.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated for any reason on or before the 60th day after such Change of Control. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, written notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above), to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to interest, if any, to, but excluding excluding, the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 3 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Change of Control. (a) If there is a Change of Control occurs(as defined in the Plan) during the Employment Term, then fifty percent (50%) of all outstanding unvested shares subject to the terms Option as of the date of the Change of Control shall become fully vested; provided that this Section 5(e) shall only apply to the first Change of Control that occurs during the Employment Term. If the unvested portion of the Option (after giving effect to the accelerated vesting in the preceding sentence) is not continued, substituted or assumed (as provided in Section 8.4(b)(1) of the Plan) in connection with the first Change of Control that occurs during the Employment Term, the entire remaining unvested portion of the Option, if any, shall become fully vested, provided that, if the Company reasonably determines that it will not result in adverse tax consequences under Section 409A of the Code, the Company may in its sole discretion elect in lieu of the accelerated vesting set forth in this sentence to convert the unvested portion of the Option (which, for the avoidance of doubt, shall not include any portion of the Option that vests in the Change of Control pursuant to the first sentence of this Section 4.03, each Holder will have 5(e)) into the right to require the Issuer to repurchase all or any part (equal to $200,000 or receive an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price amount in cash equal to 101% the excess, if any, of (y) the principal amount product of (I) the Notes, plus accrued and unpaid interest consideration paid in respect of one share of Common Stock in connection with the Change of Control (with the cash value of any non-cash consideration being equal to the date fair market value, as determined by the Board in good faith, of purchase such non-cash consideration) multiplied by (II) the number of shares of Common Stock subject to the right unvested portion of Holders the Option over (z) the aggregate exercise price of record on the relevant record date to receive interest due on unvested portion of the relevant interest payment dateOption (the “Deferred Cash Payment”); provided, however, provided further that the Issuer shall not be obliged to repurchase Notes as described under nothing in this Section 4.03 5(e) shall prevent the Company from cancelling the Option (as provided in Section 8.4(b)(4) of the Plan) in the event and to the extent Deferred Cash Payment would be zero. The Deferred Cash Payment, if any, will be made on the later of (i) the date(s) that it has unconditionally exercised its right to redeem all of payment(s) would be made in the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control orto holders of Common Stock generally or (ii) subject to the Executive’s continued employment with the Company on each applicable vesting date, at in accordance with the Issuer’s option, at any time prior vesting schedule applicable to a Change the Option as of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, including the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures accelerated vesting provisions set forth in this IndentureSections 5(b)-(d), with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”8(d)(5) and the record date;
(38(e) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicableAgreement.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Executive Employment Agreement (Radius Health, Inc.), Executive Employment Agreement (Radius Health, Inc.), Executive Employment Agreement (Radius Health, Inc.)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless a third party makes a Change of Control Offer or the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes pursuant to Section 3.9(c), the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (a “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedinterest, howeverif any, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not includingexcluding, the date of purchase (subject to repurchase; provided that if the right of Holders of record repurchase date is on a or after the record date to and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive interest on the relevant interest payment date) repurchase date (the “Change of Control Payment”). Within 30 days following any Change of Control Repurchase Event, the Company will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC, or, at the Company’s option, by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the applicable procedures of DTC, with the following information (provided that to the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Section 3.9, the Company shall not be deemed to have breached its obligations under this Section 3.9 by virtue of compliance therewith):
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered and not validly withdrawn pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or validly withdrawn will remain outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered and that the unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control;
(9) describing the transaction or transactions that constitute the Change of Control Repurchase Event; and
(710) certain the other procedures instructions, as determined by the Company, consistent with this Section 3.9, that a holder Holder must follow. The Paying Agent will promptly mail to each Holder so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes must follow to accept surrendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to withdraw the Person in whose name a Note is registered at the close of business on such acceptancerecord date.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer Company will, to the extent lawfulpermitted by law:
(1) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered the Notes so accepted for purchase together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofCompany.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If In the event that Holders of not less than 90% in of the aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in accept a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, Company purchases all of the Notes validly tendered and not validly withdrawn held by such Holders, the Issuer or such third party Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such the purchase pursuant to the Change of Control Offer described abovein this Section 3.9, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% the Change of Control Payment plus, to the principal amount thereof plus extent not included in the Change of Control Payment, accrued and unpaid interest to on the notes that remain outstanding, to, but excluding excluding, the date of redemption (subject to the delivery right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
(e) While the Notes are in global form and the Company makes an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer or by funds controlled or managed by any Affiliate Notes through the facilities of the IssuerDTC, or any successor thereof, shall be deemed subject to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)its rules and regulations.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require unless the Issuer has previously or substantially concurrently therewith delivered a redemption notice with respect to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notesoutstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice make an offer (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s the Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date. Within 30 days following any Change of Control, the Issuer will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entrybook‑entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by them or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is .
(e) [Reserved]
(f) While the Notes are in place for global form and the Change Issuer makes an offer to purchase all of Control at the time of making of Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictcompliance therewith.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 3 contracts
Sources: Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.)
Change of Control. (a) If Upon the occurrence of a Change of Control occursControl, subject the Company shall be required, if requested by any Holders, to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase purchase all or any part a portion (equal to $200,000 or an in integral multiple multiples of $1,000 in excess thereofUS$1,000) of such the Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notesthereof, plus accrued and unpaid interest to thereon through the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willCompany shall, to the extent lawful:
(1) accept for payment all Notes or portion portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Officers’ Certificate stating the aggregate principal amount of Notes or portions of the Notes thereof being purchased by the Issuer in the Company.
(c) If only a portion of a Note is purchased pursuant to a Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 equal to the portion thereof not purchased shall be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and integral multiples of $1,000 beneficial interests in excess thereofa Global Note will be made, as appropriate).
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fd) The Issuer will Company shall not be required to make a Change of Control Offer upon a Change of Control if if:
(1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly properly tendered and not validly withdrawn under such the Change of Control Offer, or
(2) notice of redemption has been given pursuant to Section 5.3 hereof, unless and until there is a default in payment of the applicable redemption price.
(ge) Notwithstanding anything to In the contrary herein, event that Holders of not less than 95% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer may be made in advance and the Company or a third party purchases all of a Change of Controlthe Notes held by such Holders, conditional upon such Change of Controlthe Company shall have the right, if a definitive agreement is in place for on not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at the time of making of a purchase price equal to the Change of Control Offer. The Issuer will complyPayment plus, to the extent applicablenot included in the Change of Control Payment, accrued and unpaid interest, if any, on the Notes that remain outstanding, to the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
(f) The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other applicable securities laws or and regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.03in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.8, the Issuer will Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictdoing so.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Homex Development Corp.), Indenture (Homex Development Corp.)
Change of Control. (a) If a Change of Control occursoccurs after the Issue Date, subject unless, prior to, or concurrently with, the time the Issuer is required to make a Change of Control Offer (as defined below), the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission, a redemption notice with respect to all the Outstanding Notes as described under Section 4.01 or Section 11.06, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof (or such higher amount as the Issuer may determine (any Change of Control Offer at a higher amount, an “Alternate Offer”)) (such price, the Notes, “Change of Control Payment”) plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (purchase, subject to the right of Holders of record on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and Interest Payment Date falling on or prior to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at Payment Date (as defined below). Within 30 days following any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will shall send a notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee sent in the same manner, to each Holder to the address of any such Notes by mail Holder appearing in the Note Register or otherwise in accordance with the procedures set forth in this Indentureof the Depository, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 10.16 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 ten days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) sent (the “Change of Control Payment Date”) and ), except in the record datecase of a conditional Change of Control Offer made in advance of a Change of Control pursuant to Section 10.16(e);
(3) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed or otherwise in accordance with the procedures of the Depository, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration time of the Change of Control Offer, an electronic transmission (in PDF), a facsimile transmission or letter setting forth the name of the Holder or otherwise in accordance with the procedures of the Depository, the principal amount of the Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if less than all of such Holder’s Notes are tendered for purchase, such Holder will be issued new Notes (or, in the case of global notes, such Notes shall be reduced by such amount of Notes that the Holder has tendered) and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered; provided that the unpurchased portion of the Notes must be equal to at least $2,000 or an integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed sent prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of ControlControl and describing each such condition, and, if applicable, stating that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time (including more than 60 days after the notice is mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or that such purchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that any or all such conditions shall not have been satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and
(79) certain such other procedures instructions, as determined by the Issuer, consistent with this Section 10.16, that a holder Holder must follow.
(b) While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes must follow pursuant to accept a the Change of Control Offer Offer, a Holder may exercise its option to elect for the purchase of Notes or to withdraw such acceptanceelection through the facilities of the Depository, subject to its rules and regulations.
(c) The Issuer shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent such laws or regulations are applicable in connection with the newswire service repurchase of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. Notwithstanding the foregoing, the Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will shall not be required to make a Change of Control Offer upon a Change (including, for the avoidance of Control doubt, an Alternate Offer) if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer (including, for the avoidance of doubt, an Alternate Offer) may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the such Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hf) If With respect to the Notes, if Holders of not less than 90% in aggregate principal amount of the outstanding Outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03as described above, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 ten days nor more than 60 days’ prior notice, notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above), to redeem all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to 101% the Change of Control Payment (excluding any early tender premium or similar premium and any accrued and unpaid interest to any Holder in such Change of Control Payment) in respect of the principal amount thereof Second Change of Control Payment Date, plus accrued and unpaid interest to on the Notes that remain outstanding to, but excluding excluding, the date of redemption (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date that is on or prior to the Second Change of Control Date).
(g) The provisions of this Section 10.16 and the definition of “Change of Control” may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. A Change of Control Offer with respect to the Notes (including, for the avoidance of doubt, an Alternate Offer) may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the Guarantees so long as the offer to purchase a Holder’s Notes in the tender offer is not conditioned upon the delivery of the notice for consents by such redemptionHolder. In determining whether addition, the Issuer or any third party approved in writing by the Issuer that is making the Change of Control Offer (including, for the avoidance of doubt, an Alternate Offer) may increase or decrease the Change of Control Payment (or decline to pay any early tender or similar premium) being offered to Holders at any time in its sole discretion, so long as the Change of Control Payment is at least 90equal to 101% of the aggregate principal amount of the then outstanding Notes have validly tendered being repurchased, plus accrued and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)unpaid interest thereon.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Mr. Cooper Group Inc.), Indenture (Mr. Cooper Group Inc.)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless a third party makes a Change of Control Offer or the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes pursuant to Section 3.9(c), the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (a “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedinterest, howeverif any, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not includingexcluding, the date of purchase (subject to repurchase; provided that if the right of Holders of record repurchase date is on a or after the record date to and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive interest on the relevant interest payment date) repurchase date (the “Change of Control Payment”). Within 30 days following any Change of Control Repurchase Event, the Company will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or, at the Company’s option, by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the applicable procedures of DTC, with the following information (provided that to the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Section 3.9, the Company shall not be deemed to have breached its obligations under this Section 3.9 by virtue of compliance therewith):
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered and not validly withdrawn pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or validly withdrawn will remain outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered and that the unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control;
(9) describing the transaction or transactions that constitute the Change of Control Repurchase Event; and
(710) certain the other procedures instructions, as determined by the Company, consistent with this Section 3.9, that a holder Holder must follow. The Paying Agent will promptly mail to each Holder so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes must follow to accept surrendered, if any; provided that each such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to withdraw the Person in whose name a Note is registered at the close of business on such acceptancerecord date.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer Company will, to the extent lawfulpermitted by law:
(1) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered the Notes so accepted for purchase together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofCompany.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If In the event that Holders of not less than 90% in of the aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in accept a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, Company purchases all of the Notes validly tendered and not validly withdrawn held by such Holders, the Issuer or such third party Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such the purchase pursuant to the Change of Control Offer described abovein this Section 3.9, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% the Change of Control Payment plus, to the principal amount thereof plus extent not included in the Change of Control Payment, accrued and unpaid interest to on the notes that remain outstanding, to, but excluding excluding, the date of redemption (subject to the delivery right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
(e) While the Notes are in global form and the Company makes an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer or by funds controlled or managed by any Affiliate Notes through the facilities of the IssuerDTC, or any successor thereof, shall be deemed subject to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)its rules and regulations.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to after the terms of this Section 4.03Issue Date, each Holder will shall have the right to require the Issuer Issuers to repurchase purchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash (a “Change of Control Payment”) equal to 101% of the principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment datedate falling prior to or on the Purchase Date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and except to the extent that it has unconditionally exercised its right the Issuers have previously elected to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity Article V of the Notes held by any holder to below $200,000this Indenture.
(b) Unless Prior to or within 30 days following any Change of Control, except to the Issuer has unconditionally extent that the Issuers have exercised its their right to redeem all the Notes pursuant to as described under Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control5.1, the Issuer will send Issuers shall deliver a notice (the a “Change of Control Offer”) to each Holder of any such Notes by mail with a copy to the Trustee and the Paying Agent, or otherwise in accordance with the procedures set forth in this Indentureof the Depositary, with a copy to the Trusteedescribing:
(1i) stating that a Change of Control has occurred or may occur or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has has, or upon such occurrence will have, the right to require the Issuer Issuers to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, if any, to (but not including, ) the date of purchase (subject to the right of Holders of record on a record date Record Date to receive interest on the relevant interest payment Interest Payment Date falling prior to or on the purchase date) (the “Change of Control Payment”);
(2ii) stating the repurchase transaction or transactions that constitute, or are expected to constitute, such Change of Control;
(iii) the purchase date (which shall be no earlier than 10 ten (10) days nor later than 60 days (unless delivered in advance of the occurrence of such Change of Control) from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Controldelivered) (the a “Change of Control Payment Date”) and the record date);
(3iv) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders shall be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuers to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the expiration time of the Change of ControlControl Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5viii) describing that if a holder (other than a holder of a global note) is tendering for purchase less than all of its Notes, the procedures determined Issuers will issue new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered and the unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof (or such lower denomination as may be permitted by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDepositary);
(6ix) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7x) certain the other procedures instructions determined by the Issuers, consistent with this covenant, that a holder of Notes Holder must follow in order to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published have its Notes purchased. While the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, in global form and the rules Issuers make an offer to purchase all of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with , a Holder may exercise its option to elect for the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions purchase of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to made through the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion facilities of the Notes surrendered, if any; provided that each such new Note will be Depositary in a principal amount that is at least $200,000 accordance with the rules and integral multiples of $1,000 in excess regulations thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer will Issuers shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
, (gii) Notwithstanding anything in connection with or in contemplation of any Change of Control, the Issuers (or any Affiliate of the Issuers) or a third party has made an offer to purchase, at the contrary herein, times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer may be made in advance of (an “Alternate Offer”), any and all Notes validly tendered at a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for cash price equal to or higher than the Change of Control at Payment and has purchased all Notes properly tendered in accordance with the time of making terms of the Change Alternate Offer, or (iii) the Issuers have previously issued a notice of Control Offer. a full redemption pursuant to Section 5.1
(d) The Issuer will Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.033.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.9, the Issuer will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under this Section 3.9 by virtue of such compliance.
(e) A Change of Control Offer or Alternate Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control.
(f) On the Change of Control provisions of this Indenture Payment Date, the Issuers shall, to the extent permitted by virtue of the conflict.law,
(hi) If Holders of not less than 90% in aggregate principal amount of accept for payment all Notes issued by the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, Issuers or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes portions thereof validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash Offer;
(ii) deposit with the Paying Agent an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Payment in respect of all Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuerportions thereof so tendered; and
(iii) deliver, or any successor thereof, shall be deemed cause to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified thereindelivered, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase Trustee or registrar for cancellation the Notes as a result of a Change of Control may be waived so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or modified with portions thereof have been tendered to and purchased by the written consent of holders of a majority in outstanding principal amount of the NotesIssuers.
Appears in 2 contracts
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC), Indenture (Ortho Clinical Diagnostics Holdings PLC)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has shall have the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101101.0% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the purchase date), except to the extent the Issuer has previously elected to redeem all of the Notes pursuant to Section 5.1.
(b) Prior to or within 30 days following any Change of Control, except to the extent that the Issuer has exercised its right to redeem all of the Notes as described under Section 5.1, the Issuer shall deliver a notice (a “Change of Control Offer”) to each Holder, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC, describing:
(i) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on a record date Record Date to receive interest on the relevant interest payment Interest Payment Date falling prior to or on the purchase date) (the “Change of Control Payment”);
(2ii) stating the repurchase transaction or transactions that constitute, or are expected to constitute, such Change of Control;
(iii) the purchase date (which shall be no earlier than 10 days nor later than 60 days (unless delivered in advance of the occurrence of such Change of Control) from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Controldelivered) (the “Change of Control Payment Date”) and the record date);
(3iv) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders shall be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the expiration time of the Change of ControlControl Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5viii) describing the procedures determined by the Issuer, consistent with this Indenture, that if a Holder (other than a Holder of a Global Note) is tendering for purchase less than all of its Notes, the Issuer will issue new Notes to such holder and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must follow be equal to $2,000 or an integral multiple of $1,000 in order to have its Notes repurchasedexcess thereof (or if a PIK Payment has been made, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof);
(6ix) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7x) certain the other procedures instructions determined by the Issuer, consistent with this Section 3.9, that a holder of Notes Holder must follow in order to accept a have its Notes purchased. While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes to be made through the facilities of the Depositary in accordance with the rules and regulations thereof.
(c) The Issuer Holders electing to have a Note purchased shall cause be required to be published surrender the Note, with an appropriate form duly completed, to the Paying Agent at the address specified in the notice described above through at least three Business Days prior to the newswire service Change of Bloomberg (or Control Payment Date. Holders shall be entitled to withdraw their election if Bloomberg does the Paying Agent receives not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and later than prior to the rules expiration of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer, a telegram, telex facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his selection to have such Note purchased.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, all Notes purchased by the Issuer will, under this Section 3.9 shall be delivered by the Issuer to the extent lawful:
(1) accept Trustee for payment all Notes or portion thereof properly tendered pursuant to cancellation, and the Change of Control Offer;
(2) deposit with Issuer shall pay through the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating Holders entitled thereto. With respect to any Note purchased in part (other than a Global Note), the aggregate Issuer shall issue a new Note in a principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, equal at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount maturity to the unpurchased portion of the Notes surrendered, if any; provided that each such new original Note will be in a principal amount that is at least $200,000 and integral multiples the name of $1,000 in excess thereofthe Holder upon cancellation of the original Note.
(e) This Section 4.03 will be applicable whether or not any other Notwithstanding the provisions of this Indenture are applicable.
(f) The Section 3.9, the Issuer will shall not be required to make a Change of Control Offer upon a Change of Control (i) if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer or (ii) if the Issuer has previously issued a notice of a full redemption pursuant to the provisions of Section 5.4.
(f) Prior to any Change of Control Offer, the Issuer shall deliver to the Trustee an Officer’s Certificate stating that all conditions precedent contained herein to the right of the Issuer to make such offer have been complied with.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will shall comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.033.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.9, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 3.9 by virtue of the conflictsuch compliance.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a A Change of Control Offer and the Issuer, or any third party making may be made in advance of a Change of Control, and conditioned upon such Change of Control.
(i) On the Change of Control Offer in lieu of Payment Date, the Issuer in accordance with this Section 4.03shall, purchases to the extent permitted by law,
(i) accept for payment all of Notes issued by the Notes Issuer or portions thereof validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash Offer;
(ii) deposit with the Paying Agent an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control OfferPayment in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes owned so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (PPD, Inc.), Indenture (PPD, Inc.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating if the fair market value of the consideration payable in connection with such Change of Control for each share of Common Stock is greater than the per share Exercise Price hereunder, the Company may elect by providing proper notice pursuant to Section 3.4 hereof to cause this Warrant to be automatically exercised (even if this Warrant is not surrendered), in lieu of an exercise in accordance with Section 2.1 or Section 2.2, upon consummation of such Change of Control to the extent that any portion of the Warrant remains unexercised at the time of the consummation of the Change of Control. The Holder shall be entitled to receive consideration in the amount equal to the difference between the consideration payable in connection with such Change of Control Offer is conditional on for the occurrence Exercise Shares, if exercised, and the Aggregate Exercise Price for such Exercise Shares. The consideration payable to the Holder in connection with this Section 2.3(a) shall be in the same form as the consideration distributed to holders of Common Stock in connection with such Change of Control; and
provided that, if the consideration distributed to holders of Common Stock in connection with such Change of Control consists of consideration other than cash or Liquid Securities (7or a combination thereof), the consideration payable to the Holder in connection with this Section 2.3(a) certain other procedures that shall be an amount of cash payable by the Company equal to the aggregate Fair Market Value of the Exercise Shares minus the Aggregate Exercise Price. To the extent this Warrant or any portion thereof is automatically exercised pursuant to this Section 2.3(a), the Company agrees to promptly notify the Holder of the amount and form of consideration payable to the Holder in connection with such Change of Control. This Warrant shall terminate in connection with a holder deemed exercise pursuant to this Section 2.3 after payment in full to the Holder of Notes must follow the amounts payable to accept the Holder under this Section 2.3. If the fair market value of the consideration payable in connection with a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service for each share of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount Common Stock is equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and per share Exercise Price, this Warrant will expire upon the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result consummation of a Change of Control may be waived or modified with to the written consent of holders of a majority in outstanding principal amount of the Notesextent this Warrant has not been previously exercised as to all Exercise Shares subject hereto.
Appears in 2 contracts
Sources: Securities Purchase Agreement (FreightCar America, Inc.), Warrant Agreement (FreightCar America, Inc.)
Change of Control. (ai) If Subject to the following provisions in this Section 16(d), Covance shall have the right in its absolute discretion to terminate this Agreement and/or any or all IPAs in connection with a Change of Control occursControl. If Variagenics expects there to be a Change of Control, subject Variagenics shall provide to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) Covance prompt prior written notice of such Holder’s Notes at a purchase price expected event, together with such information with respect thereto as Covance shall reasonably request, which information Covance shall request in cash equal to 101% writing within 10 days of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date)such written notice; provided, howeverthat Variagenics shall notify Covance promptly in writing if ▇▇▇▇▇▇ ▇▇▇▇▇▇ no longer is serving as President of Variagenics. Within fifteen (15) days of receipt of such notice and information, that the Issuer Covance shall give written notice to Variagenics as to whether or not be obliged Covance intends to repurchase Notes as described under terminate this Section 4.03 Agreement in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to connection with such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control orControl. If Covance does not give a written response within such fifteen (15) days, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is Covance's written response indicates it will not terminate this Agreement in place for connection with the Change of Control, the Issuer then Covance will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the have no right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price terminate this Agreement in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after connection with the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant . If Covance's response indicated it intends to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute terminate this Agreement in connection with the Change of Control;
, then Covance shall have the right, exercisable within ten (510) describing days after receipt of Variagenics' notice to Covance of the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence effectiveness of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow , to accept a Change of Control Offer immediately terminate this Agreement and/or any or to withdraw such acceptance.
(c) all IPAs in its absolute discretion. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Dateforegoing notwithstanding, if the Change of Control is completed on terms materially different than the terms indicated in the notice provided for in the first sentence of this Section 16(d) and information provided to Covance (a "Non-Compliant Change of Control"), then Covance shall have occurred, the Issuer will, right to terminate this Agreement and/or any or all IPAs in its absolute discretion within forty-five (45) days after Covance has actual knowledge of the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to occurrence of the Non-Compliant Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofControl.
(eii) This Section 4.03 will be applicable whether Covance shall also have the right to terminate this Agreement and/or any or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make all IPAs in its absolute discretion in connection with a Change of Control Offer upon a Change of Control if a third party makes with respect to which Covance was not provided the Change of Control Offer notice and information required by this Section 16(d) or, in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result case of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount under clause (v) of the Notesdefinition thereof, as to which no satisfactory replacement is obtained within the permitted one-hundred and eighty (180) day period. Covance may exercise this right by written notice given at any time prior to forty-five (45) days after receipt by Covance of all information with respect to any such Change of Control Covance may reasonably request in writing, which request shall be made by Covance within ten (10) days of Covance's receipt of written notice from Variagenics of such Change of Control.
(iii) Under all circumstances under this Section 16(d), Variagenics will notify Covance immediately upon the effectiveness of any Change of Control, and promptly provide such information as Covance shall reasonably request to determine whether the Change of Control was a Non-Compliant Change of Control.
Appears in 2 contracts
Sources: Alliance Agreement (Variagenics Inc), Alliance Agreement (Variagenics Inc)
Change of Control. (a) If In connection with a Change of Control occursControl, and subject to any approval of the terms Change of this Section 4.03, each Holder will Control by the holders of Class A Common Stock and Class B Common Stock that may be required:
(i) The Corporation shall have the right to require the Issuer Member to repurchase all effectuate an Exchange of some or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or Member’s Exchangeable Units, and a corresponding number of shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free and clear of all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce Liens), with the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control Corporation or, at the Issueroption of the Corporation, with any Subsidiary of the Corporation, in each case, in exchange for the delivery to the Member (or its designee) of a number of shares of Class A Common Stock that is equal to the product of the applicable Exchanged Unit Amount and the Exchange Rate (such Exchange, a “Change of Control Exchange”); provided that, if the Corporation requires the Member to Exchange less than all of its outstanding Exchangeable Units (and corresponding number of shares of Class B Common Stock after taking into account the Exchange Rate), the Member’s optionparticipation in the required Exchange shall be reduced pro rata based on ownership of Exchangeable Units. For the avoidance of doubt, at any time prior Exchangeable Units and a corresponding number of shares of Class B Common Stock held by the Member that are not Exchanged pursuant to a Change of Control following Exchange may be Exchanged by the public announcement thereof or if a definitive agreement is in place for Member after the Change of Control, the Issuer will send a notice (the “Change of Control Offer”transaction pursuant to Section 2.1(a) subject to each Holder of any such Notes by mail or otherwise and in accordance with the procedures set forth terms thereof.
(ii) The election of the Corporation pursuant to this Section 2.1(b) shall be at the sole discretion of the Corporation upon the approval thereof by a majority of the directors of the Corporation that do not have an interest in the Exchangeable Units and shares of Class B Common Stock being Exchanged.
(iii) Any Exchange pursuant to this Indenture, with a copy Section 2.1(b) shall be effective immediately prior to the Trustee:
(1) stating that a consummation of the Change of Control has occurred or may occur and that (and, for the avoidance of doubt, shall not be effective if such Holder has the right to require the Issuer to purchase all or any part Change of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but Control is not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment dateconsummated) (the “Change of Control PaymentExchange Date”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed . From and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless Exchange Date, (x) the Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section 2.1(b) shall be deemed to be transferred to the Corporation, or the exchanging Subsidiary, as applicable, on the Change of Control Payment is not paid, Exchange Date and that (y) the Member shall cease to have any Notes or part thereof not tendered will continue rights with respect to accrue interest;the Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section 2.1(b) (other than the right to receive shares of Class A Common Stock pursuant to Section 2.1(b)(i) upon compliance with its obligations under Section 2.1(c)).
(4iv) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the The Corporation shall provide written notice of an expected Change of Control;
Control to the Member within the earlier of (x) five (5) describing Business Days following the procedures determined by execution of the Issueragreement with respect to such Change of Control and (y) ten (10) Business Days before the proposed date upon which the contemplated Change of Control is to be effected, consistent with this Indenture, that a Holder must follow indicating in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that such information as may reasonably describe the Change of Control Offer is conditional on transaction, subject to applicable law, including the occurrence date of execution of such Change agreement or such proposed effective date, as applicable, the amount and types of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause consideration to be published the notice described above through the newswire service paid for Exchangeable Units and shares of Bloomberg (Class B Common Stock or if Bloomberg does not then operateshares of Class A Common Stock, any similar agency). In additionas applicable, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case which consideration shall be equivalent whether paid for Exchangeable Units and shares of Global NotesClass B Common Stock or shares of Class A Common Stock), deliverany election with respect to types of consideration that a holder of Exchangeable Units and shares of Class B Common Stock or shares of Class A Common Stock, or cause to as applicable, shall be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required entitled to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance connection with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such the percentage of total Exchangeable Units and shares of Class B Common Stock or shares of Class A Common Stock, as applicable, to be transferred to the acquirer by all shareholders in the Change of Control, if a definitive agreement is in place and the number of Exchangeable Units and shares of Class B Common Stock held by the Member that the Corporation intends to require to be Exchanged for the Change shares of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations Class A Common Stock in connection with the repurchase Change of Notes pursuant Control. The Corporation shall update such notice from time to this Section 4.03time to reflect any material changes to such notice. To The Corporation may satisfy any such notice and update requirements described in the extent that the provisions of any securities laws preceding two sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9, Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A or regulations conflict with provisions of this Indenture, the Issuer will comply similar form filed with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictSEC.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Exchange Agreement (Powerschool Holdings, Inc.), Exchange Agreement (Powerschool Holdings, Inc.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating if the fair market value of the consideration payable in connection with such Change of Control for each share of Common Stock is greater than the per share Exercise Price hereunder, the Company may elect by providing proper notice pursuant to Section 3.4 hereof (“Auto-Exercise Notice”) to cause this Warrant to be automatically exercised (even if this Warrant is not surrendered), in lieu of an exercise in accordance with Section 2.1 or Section 2.2, upon consummation of such Change of Control to the extent that any portion of the Warrant remains unexercised at the time of the consummation of the Change of Control. The Holder shall be entitled to receive consideration in the amount equal to the difference between the consideration payable in connection with such Change of Control Offer is conditional on for the occurrence Exercise Shares, if exercised, and the Aggregate Exercise Price for such Exercise Shares. The consideration payable to the Holder in connection with this Section 2.3(a) shall be in the same form as the consideration distributed to holders of Common Stock in connection with such Change of Control; and
provided that, if the consideration distributed to holders of Common Stock in connection with such Change of Control consists of consideration other than cash or Liquid Securities (7or a combination thereof), the consideration payable to the Holder in connection with this Section 2.3(a) certain other procedures that shall be an amount of cash payable by the Company equal to the aggregate Fair Market Value of the Exercise Shares minus the Aggregate Exercise Price. To the extent this Warrant or any portion thereof is automatically exercised pursuant to this Section 2.3(a), the Company agrees to promptly notify the Holder of the amount and form of consideration payable to the Holder in connection with such Change of Control. This Warrant shall terminate in connection with a holder deemed exercise pursuant to this Section 2.3 after payment in full to the Holder of Notes must follow the amounts payable to accept the Holder under this Section 2.3. If the fair market value of the consideration payable in connection with a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service for each shares of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount Common Stock is equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and per share Exercise Price, this Warrant will expire upon the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result consummation of a Change of Control may be waived or modified with to the written consent of holders of a majority in outstanding principal amount of the Notesextent this Warrant has not been previously exercised as to all Exercise Shares subject hereto.
Appears in 2 contracts
Sources: Warrant Agreement (FreightCar America, Inc.), Warrant Agreement (Pacific Investment Management Co LLC)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuer has previously or concurrently delivered a redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) Offer electronically or by first class mail, with a copy to the Trustee, to each Holder of any Notes to the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, Control if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(he) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with clause (c) of this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
(f) While the delivery Notes are in global form and the Issuer makes an offer to purchase all of the notice Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for such redemption. In determining whether the Holders of at least 90% purchase of the aggregate principal amount Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply with the requirements of Section 14(e) under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 2 contracts
Sources: Indenture (Epicor International Holdings, Inc.), Indenture (Epicor Software Corp)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to there occurs a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change any holder of Control Offer”) to each Holder record of any such Notes by mail or otherwise shares of Series B Preferred Stock, in accordance with the procedures set forth in Section E of this IndentureArticle V, with a copy may require the Corporation to redeem any or all of the shares of Series B Preferred Stock held by such holder in an amount per share equal to the Trustee:
sum of (1i) stating that a Change the amount, if any, of Control has occurred all unpaid dividends accumulated thereon to the date of actual payment thereof, whether or may occur not such dividends have been declared, and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to (ii) 101% of Stated Value (the principal amount "CHANGE OF CONTROL PRICE"). By accepting a share of Series B Preferred Stock the holder thereof shall be deemed to have acknowledged and agreed that (a) such Notes plus accrued holder's right, to receive payment of the Change in Control Price is subject and unpaid interest to, but not including, the date subordinated in right of purchase (subject payment to the payment in full and discharge of all amounts of principal, interest and fees (however denominated) then outstanding under the Credit Agreement and the Senior Subordinated Notes and (b) until payment in full of all such amounts (however denominated) under the Credit Agreement and the Senior Subordinated Notes has been made in cash, no payment, whether directly or indirectly, by exercise of any right of Holders set off or otherwise in respect of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease Price shall be made by the Corporation, and, notwithstanding anything to accrue interest after the contrary in Section F of this Article V, no deposit in respect of the Change of Control Payment Date unless Price shall be made pursuant to Section F of this Article V. In the Change event that any payment by, or distribution of Control Payment the assets of, the Corporation of any kind or character (whether in cash, property or securities, whether directly or indirectly, by exercise of any right of set-off or otherwise and whether as a result of a bankruptcy proceeding with respect to the Corporation or otherwise) shall be received by a holder of Series B Preferred Stock at any time when such payment is not paidprohibited by this paragraph, such payment shall be held in trust for the benefit of, and that any Notes shall be paid over to, the lenders under the Credit Agreement or part thereof not tendered will continue the holders of Senior Subordinated Notes, as the case may be, as their interests may appear. The preceding two sentences address the relative rights of holders of Series B Preferred Stock or Debentures, on the one hand, and the lenders under the Credit Agreement or the holders of Senior Subordinated Notes, as the case may be, on the other hand, and nothing in this Certificate of Designations shall impair, as between the Corporation and the holders of Series B Preferred Stock or Debentures, the obligation of the Corporation, which is absolute and unconditional, to accrue interest;
(4) describing pay amounts due in respect of the circumstances Series B Preferred Stock and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Debentures in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of their terms. Upon a Change of Control, stating that the Change of Control Offer is conditional on Corporation shall pay all amounts outstanding under the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, Credit Agreement and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, Indenture to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes necessary in order to reflect thereon permit the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making payment of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictPrice hereunder.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Investment Agreement (Magellan Health Services Inc), Investment Agreement (Magellan Health Services Inc)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest pursuant to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as offer described under in this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice 4.11 (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash (the “Change of Control Purchase Price”) equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest interest, if any, to, but not including, the purchase date of purchase (subject to the right of Holders of record on a record date the relevant Record Date to receive interest due on the relevant interest payment dateInterest Payment Date).
(b) Within 30 days following any Change of Control, the Issuer shall send or cause to be sent by first-class mail (or electronic transmission in the “case of Notes held in book-entry form), with a copy to the Trustee, to each Holder, at such Holder’s address appearing in the Note register, a notice stating (as applicable): (A) that a Change of Control Payment”);
has occurred and a Change of Control Offer is being made pursuant to this Section 4.11 and that all Notes properly tendered shall be accepted for purchase; (2B) stating the repurchase date (Change of Control Purchase Price and the purchase date, which shall be be, subject to any contrary requirements of applicable law, a Business Day no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Purchase Date”) and the record date;
); (3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6C) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on conditioned upon the occurrence of such Change of Control and setting forth a brief description of the definitive agreement for the Change of Control; and
and (7D) certain other the procedures that a holder of Notes Holders must follow in order to accept a Change of Control Offer tender their Notes (or portions thereof) for payment and the procedures that Holders must follow in order to withdraw such acceptancean election to tender Notes (or portions thereof) for payment.
(c) The Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed and attached to the Note, or transfer by book-entry transfer, to the Issuer shall cause to be published or its agent at the address specified in the notice described above through at least three Business Days prior to the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control OfferPurchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Issuer receives not later than the second Business Day prior to the Change of Control Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note that was delivered for purchase by the Holder and a statement that such Holder is withdrawing its election to have such Note purchased.
(d) On Prior to 11:00 a.m. New York City time on the Change of Control Payment Purchase Date, if the Change of Control shall have occurred, the Issuer will, to shall irrevocably deposit with either the extent lawful:
(1) accept for payment all Notes Trustee or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent (or, if the Issuer, the Parent Guarantor or any of its Wholly Owned Subsidiaries is acting as the Paying Agent, segregate and hold in trust) in cash an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause Purchase Price payable to the Holders entitled thereto, to be delivered to held for payment in accordance with the Trustee an Officer’s Certificate stating the aggregate principal amount provisions of Notes or portions of the Notes being purchased by the Issuer in this Section 4.11. On the Change of Control Offer;
(4) Purchase Date, the Issuer shall deliver to the Trustee the Notes or portions thereof that have been properly tendered to and are to be accepted by the Issuer for payment. The Trustee or the Paying Agent shall, on the Change of Control Purchase Date, mail or, in the case of Global Notes, deliver, or cause deliver in accordance with the applicable procedures of DTC payment to be delivered, each tendering Holder of the Change of Control Purchase Price. In the event that the aggregate Change of Control Purchase Price is less than the amount delivered by the Issuer to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes Trustee or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expenseTrustee or the Paying Agent, will promptly mail as the case may be, shall deliver the excess to each Holder of Definitive Registered Notes so tendered the Issuer immediately after the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofPurchase Date.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (gii) notice of redemption has been given pursuant to Section 3.08 to redeem all of the Notes, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditional conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. Offer is made.
(f) The Issuer will shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase purchase of Notes pursuant to this Section 4.034.11. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this IndentureSection 4.11, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.11 by virtue of the conflictthereof.
(hg) If Holders of not less than 90% in aggregate principal amount of the then outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03Issuer, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will shall have the right, upon not less than 10 30 nor more than 60 days’ prior written notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described abovePurchase Date, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof thereof, plus accrued and unpaid interest to interest, if any, to, but excluding not including the date of redemption (subject to the delivery right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
(h) Subject to Section 9.02(g) and (h), the obligation of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in Issuer to make a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption Offer pursuant to this Section 4.03 shall 4.11 may be made in accordance with Section 3.03 (other than the waived or modified at any time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating prior to the Issuer’s obligation to make an offer to repurchase the Notes as a result occurrence of a Change of Control may be waived or modified with the written consent of the holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (MARRIOTT VACATIONS WORLDWIDE Corp), Indenture (MARRIOTT VACATIONS WORLDWIDE Corp)
Change of Control. (a) If a Change of Control occurs, subject to the terms unless a third party makes a Change of this Section 4.03, each Holder will have the right to require Control Offer or the Issuer has previously or substantially concurrently therewith delivered a redemption notice with respect to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s the outstanding Notes at a purchase price in cash equal to 101% of the principal amount of the Notesas set forth under Section 5.07, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged make an offer to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem purchase all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to offer described below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the applicable date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date. Within 30 days following any Change of Control, the Issuer shall deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) a description of the transaction or transactions that constitute the Change of Control;
(2) stating that a Change of Control Offer is being made pursuant to this Section 3.09, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the repurchase date Issuer;
(3) the purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and ), except in the record datecase of a conditional Change of Control Offer as described below;
(34) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(5) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(6) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interestotherwise comply with DTC procedures;
(47) describing that Holders will be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes; provided that the transaction or transactions that constitute applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of ControlControl Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(5) describing 8) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the procedures determined by unpurchased portion of the Issuer, consistent with this Indenture, that a Holder Notes surrendered. The unpurchased portion of the Notes must follow be equal to at least $2,000 or any integral multiple of $1,000 in order to have its Notes repurchasedexcess of $2,000;
(69) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(710) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.09, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.07 hereof unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.09, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is on analogous terms as those described in place for the Change penultimate paragraph of Control at Section 5.03.
(e) [Reserved]
(f) While the time Notes are in global form and the Issuer makes an offer to purchase all of making of the Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not shall be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of compliance therewith. The Issuer may rely on any no-action letters issued by the conflictSEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be amended, supplemented, waived or modified with the written consent of holders the Holders of a majority in outstanding principal amount of the NotesNotes then outstanding.
Appears in 2 contracts
Sources: Indenture (Embecta Corp.), Indenture (Embecta Corp.)
Change of Control. (a) If a Change of Control occurs, subject unless a third party makes a Change of Control Offer or the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase outstanding Notes as described set forth under this Section 4.03 in 5.6(a) or Section 5.6(c), the event and Company shall make an offer to the extent that it has unconditionally exercised its right to redeem purchase all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to offer described below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive interest on the repurchase date. Within 30 days following any Change of Control, the Company will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control and setting forth the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2) stating the repurchase purchase price and the purchase date, which date (which shall will be no earlier than 10 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of ControlDate;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order Holders electing to have its any Notes repurchased;
(6) if such notice is mailed prior purchased pursuant to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or will be required to withdraw surrender such acceptance.
(c) The Issuer shall cause Notes, with the form entitled “Option of Holder to be published Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice described above through at the newswire service address specified in the notice prior to the close of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed business on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On third Business Day preceding the Change of Control Payment Date, if or otherwise comply with DTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Change Company to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of Control shall have occurred, business on the Issuer will, second Business Day prior to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to expiration date of the Change of Control Offer;
(2) deposit with , a telegram, facsimile transmission or letter setting forth the Paying Agent an amount equal to name of the Change Holder of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating Notes, the aggregate principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or portions otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the surrendered. The unpurchased portion of such the Notes must be equal to at least $2,000 or portions thereof that have been tendered to and purchased by the Issuerany integral multiple of $1,000 in excess of $2,000; and
(5) in 8) the case of Definitive Registered Notesother instructions, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase as determined by the IssuerCompany, consistent with this Section 3.9, that a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Company.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.6 hereof unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is .
(e) While the Notes are in place for global form and the Change Company makes an offer to purchase all of Control at the time of making of Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(f) The Issuer Company will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will Company shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of compliance therewith. The Company may rely on any no-action letters issued by the conflict.
(h) If Holders of not less than 90% in aggregate principal amount SEC indicating that the staff of the outstanding Notes validly SEC will not recommend enforcement action in the event a tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)offer satisfies certain conditions.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (loanDepot, Inc.), Indenture
Change of Control. (a) If a Change of Control occursoccurs at any time, subject to the terms of this Section 4.03, each Holder will have the right to require then the Issuer to repurchase all or any part must make an offer (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes Notes, in whole or in part in denominations of €50,000 and integral multiples of €1,000 in excess thereof, at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, but not includingif any, to the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control PaymentPurchase Date”) (subject to the rights of Holders of record on relevant regular record dates that are prior to the Change of Control Purchase Date to receive interest due on an interest payment date). Purchases made under a Change of Control Offer shall also be subject to other procedures set forth in this Indenture.
(b) Within 30 days following any Change of Control (or, at the Issuer’s option, prior to such Change of Control but after it is publicly announced if a definitive agreement is in effect for such Change of Control at the time of such announcement), the Issuer shall:
(i) cause a notice of the Change of Control Offer to be published (A) through the newswire service of Bloomberg, or if Bloomberg does not then operate, any similar agency; and (B) if at the time of such notice the Notes are admitted to the Official List of the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, in the Luxemburger Wort (or another leading newspaper of general circulation in Luxembourg) or, to the extent and in the manner permitted by such rules, on the official website of the Luxembourg Stock Exchange (▇▇▇.▇▇▇▇▇▇.▇▇); and
(ii) send notice of the Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the security register, which notice shall state:
(A) that a Change of Control has occurred, and the date it occurred;
(B) the circumstances and relevant facts regarding such Change of Control (including, but not limited to, applicable information with respect to pro forma historical income, cash flow and capitalization after giving effect to the Change of Control);
(2C) stating the repurchase date (Change of Control Purchase Price and the Change of Control Purchase Date, which shall be a Business Day no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed mailed, or such later date as is necessary to comply with requirements under the Exchange Act and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record dateany applicable securities laws or regulations;
(3D) stating that any Note accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after the Change of Control Payment Purchase Date unless the Change of Control Payment Purchase Price is not paid, and ;
(E) that any Notes Note (or part thereof thereof) not tendered will shall continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7F) certain any other procedures that a holder Holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceacceptance (which procedures may also be performed at the office of the Luxembourg Paying Agent as long as the Notes are admitted to listing on the Official List of the Luxembourg Stock Exchange and admitted to trading on the Euro MTF and the rules and regulations of the Luxembourg Stock Exchange). If the notice is sent prior to the occurrence of the Change of Control, it may be conditioned upon the consummation of the Change of Control if a definitive agreement is in effect for the Change of Control at the time of the notice of such Change of Control.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateTrustee or, any similar agency). In addition, if any Notes are listed on an exchange, and the rules authorized agent of the exchange so requireTrustee, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) as soon as may be practicable authenticate and deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note or Notes equal in principal amount to the any unpurchased portion of the Notes surrendered, if any, to the Holder of Notes in global form or to each Holder of certificated Notes; provided that each such new Note will shall be in a principal amount that is at least $200,000 of €50,000 and integral multiples of $€1,000 in excess thereof. The Issuer shall publicly announce the results of a Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fd) The Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if if:
(i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer; or
(ii) the Issuer has unconditionally exercised its rights to redeem all of the Notes pursuant to Article Three and all conditions to such redemption have been satisfied or waived.
(ge) Notwithstanding anything to The Issuer shall comply with the contrary hereinapplicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable securities laws and regulations (including those of The Netherlands) in connection with a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the such conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Change of Control. (a) If a Without limiting any of the other provisions hereof, if any Change of Control occursshall be effected, subject then the Company shall use its best efforts to ensure that lawful and adequate provision shall be made whereby the terms of this Section 4.03, each Holder will shall thereafter continue to have the right to require purchase and receive upon the Issuer basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares issuable upon exercise of this Warrant, shares of stock in the surviving or acquiring entity (“Acquirer”), as the case may be, such that the aggregate value of the Holder’s warrants to repurchase all purchase such number of shares, where the value of each new warrant to purchase one share in the Acquirer is determined in accordance with the Black-Scholes Option Pricing formula set forth in Appendix A hereto, is equivalent to the aggregate value of this Warrant, where the value of this Warrant to purchase one share in the Company is determined in accordance with the Black-Scholes Option Pricing formula set forth Appendix B hereto. Furthermore, the new warrants to purchase shares in the Acquirer referred to herein shall have the same expiration date as this Warrant, and shall have an exercise price that is calculated in accordance with Appendix A hereto. For the avoidance of doubt, if the surviving or any part (equal acquiring entity, as the case may be, is a member of a consolidated group for financial reporting purposes, the “Acquirer” shall be deemed to $200,000 or an integral multiple of $1,000 in excess thereof) be the parent of such Holder’s Notes at a purchase price in cash equal consolidated group for purposes of this Section 5.1 and Appendix A hereto. Moreover, appropriate provision shall be made with respect to 101% the rights and interests of the principal amount Holder to the end that the provisions hereof (including, without limitation, provision for adjustment of the NotesWarrant Price) shall thereafter be applicable, plus accrued as nearly equivalent as may be practicable in relation to any shares of stock thereafter deliverable upon the exercise thereof. In any such case, the successor corporation resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume by written instrument, reasonably deemed by the Board of Directors of the Company and unpaid interest the Requisite Holders to be satisfactory in form and substance, the obligation to deliver to the date holder of purchase (subject the Warrants such shares of stock, as, in accordance with the foregoing provisions, such holder may be entitled to purchase, and the right other obligations under the Warrants. The provisions of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 5.1 shall similarly apply to successive Changes of Control. If the Company, in spite of using its best efforts, is unable to cause the event Warrants to continue in full force and to effect until the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase Expiration Date in part shall reduce the principal amount at maturity of the Notes held by connection with any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, then the Issuer will send a notice (Company shall pay the “Change of Control Offer”) Holder an amount per Warrant to each Holder of any such Notes by mail or otherwise purchase one share in the Company that is calculated in accordance with the procedures Black-Scholes Option Pricing formula set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price Appendix B hereto. Such payment shall be made in cash equal to 101% of in the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating event that the Change of Control Offer is conditional on results in the occurrence stockholders of such Change the Company receiving cash from the Acquirer at the closing of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchangetransaction, and the rules shall be made in shares of the exchange so require, Company (with the Issuer will notify value of each share in the exchange of Company is determined according to Appendix B hereto) in the results of any Change of Control Offer.
(d) On event that the Change of Control Payment Date, if results in the Change stockholders of Control shall have occurred, the Issuer will, to Company receiving shares in the extent lawful:
Acquirer or other entity at the closing of the transaction (1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer Holder then participating in the Change of Control Offer;
(4) and receiving for such Company shares the consideration per share specified in such transaction). In the event that the stockholders of the Company receive both cash and shares at the closing of the transaction, such payment to the Holder shall be also be made in both cash and shares in the case of Global Notes, deliver, or cause to be delivered, to same proportion as the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased consideration received by the Issuer; and
(5) in stockholders. For the case avoidance of Definitive Registered Notesdoubt, deliver, any term or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions provision of this Indenture are applicable.
(f) The Issuer will not Section 5.1 may be required to make revised or waived in connection with a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount agreement of the NotesCompany and the Requisite Holders.
Appears in 2 contracts
Sources: Warrant Agreement (Singulex Inc), Warrant Agreement (Singulex Inc)
Change of Control. In the event that the Company’s Board of Directors and the holders of at least fifty five percent (55%) of then outstanding Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (the “Requisite Holders”), approve a sale of the Company, in a single transaction or series of related transactions or the sale of all or substantially all of the Company’s assets, in a single transaction or series of related transactions (an “Approved Sale”) whether by means of a merger, consolidation or sale of stock or assets, or otherwise (each, a “Sale of the Company”), (i) if the Approved Sale is structured as a merger or consolidation of the Company, or a sale of all or substantially all of the Company’s assets, each Key Holder and Investor agrees to be present, in person or by proxy, at all meetings for the vote thereon, to vote all shares of capital stock held by such person for and raise no objections to such Approved Sale, and waive and refrain from exercising any dissenters rights, appraisal rights or similar rights in connection with such merger, consolidation or asset sale, or (ii) if the Approved Sale is structured as a sale of the stock of the Company, the Key Holders and Investors shall each agree to sell their Key Holder Shares and Investor Shares on the terms and conditions approved by the Requisite Holders. Notwithstanding the foregoing, the Key Holders and Investors (collectively, the “Stockholders”) shall not be required to vote their respective Key Holder Shares and/or Investor Shares in favor of the Approved Sale or agree to sell their respective Key Holder Shares and/or Investor Shares in connection with an Approved Sale pursuant to this Section 1.9, as the case may be, unless (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or Approved Sale do not provide that any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) such Stockholder would receive as a result of such Holder’s Notes at a purchase price in cash equal Approved Sale less than the amount that would be distributed to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 such Stockholder in the event and to the extent that it has unconditionally exercised its right to redeem all proceeds of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise Approved Sale were distributed in accordance with the procedures liquidation preferences set forth in this Indenturethe Restated Certificate, with a copy to the Trustee:
(1b) stating that a Change of Control has occurred or may occur any representations and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause warranties required to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations Stockholder in connection with the repurchase Approved Sale are limited to representations and warranties made severally, and not jointly, by such Stockholder and are further limited to the representations and warranties related to authority, ownership and the ability to convey titled to shares owned, (c) the Stockholder shall not be liable for the inaccuracy of Notes any representation or warranty made severally by any other Stockholder in connection with the Approved Sale, (d) the liability for indemnification, if any, of such Stockholder in the Approved Sale and for the inaccuracy of any representations and warranties made by the Company in connection with the Approved Sale, shall be several and not joint with any other Stockholder and shall be pro rata in proportion to the amount of consideration paid to such Stockholder in connection with the Approved Sale (in accordance with the provisions of the Restated Certificate) and (e) the liability shall be limited to such Stockholder’s applicable share of negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Approved Sale, except with respect to claims related to fraud by the Stockholder. Notwithstanding anything in this Agreement, including, without limitation, this Section 1.9, to the contrary, Medicis shall not be required in connection with any Approved Sale to agree pursuant to this Section 4.03. To 1.9 to (1) any noncompetition or similar covenant or agreement; (2) any other covenant or agreement that would directly restrict the extent that the provisions business of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, Medicis or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less its Affiliates other than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant for customary restrictions generally applicable to the Change of Control Offer described aboveStockholders, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued as confidentiality and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by related provisions; or (3) release or waive any Affiliate of the Issuer rights or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating claims unrelated to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the NotesApproved Sale against any Person.”
Appears in 2 contracts
Sources: Settlement and Termination Agreement, Settlement and Termination Agreement (Revance Therapeutics, Inc.)
Change of Control. (a) If a A Change of Control occursshall occur if (i) a third party acquires greater than 50% in voting rights of the Borrower in one or a series of related transactions, subject (ii) the shares of the Borrower’s Common Stock shall be changed into securities of another entity, (iii) the Borrower sells or transfers more than 40% in aggregate of the properties or assets of the Borrower to another Person or Persons in any rolling 12 month period (an “Asset Sale”), or (iv) a purchase, tender or exchange offer made to and accepted by the terms holders of this Section 4.03, each Holder will have more than the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 10150% of the outstanding shares of the Borrower’s Common Stock Upon the occurrence and during the continuation of any Event of Default specified in Section 3.1 (solely with respect to failure to pay the principal hereof or interest thereon when due at the Maturity Date, giving effect to any applicable cure period), the Debenture shall become immediately due and payable and the Borrower, at the option of the Holder in its sole discretion, shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to the Default Sum (as defined herein). Upon the occurrence and during the continuation of any Event of Default specified in Sections 3.3, exercisable through the delivery of written notice to the Borrower by such Holders (the “Default Notice”), and upon the occurrence of an Event of Default specified in the remaining sections of Article III(other than failure to pay the principal hereof or interest thereon at the Maturity Date specified in Section 3.1 hereof), the Debenture shall become immediately due and payable and the Borrower shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to the sum of (x) the then outstanding principal amount of this Debenture (or, in the Notescase of an Event of Default under Section 3.12, 125% of the outstanding principal amount of this Debenture) plus (y) accrued and unpaid interest on the unpaid principal amount of this Debenture to the date of purchase payment (subject the “Mandatory Prepayment Date”) plus (z) Default Interest (the amounts referred to in clauses (x), (y) and (z) shall collectively be known as the “Default Sum”) and all other amounts payable hereunder shall immediately become due and payable, all without demand, presentment or notice, all of which hereby are expressly waived, together with all costs, including, without limitation, legal fees and expenses, of collection, and the Holder shall be entitled to exercise all other rights and remedies available at law or in equity. If the Borrower fails to pay the Default Sum within five (5) business days of written notice that such amount is due and payable, then the Holder shall have the right of Holders of record on at any time, so long as the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 Borrower remains in the event default (and so long and to the extent that it has unconditionally exercised its right there are sufficient authorized shares), to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by liquidate any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment collateral pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules terms of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control OfferSecurity Agreement.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cybergy Holdings, Inc.), Securities Purchase Agreement (Mount Knowledge Holdings, Inc.)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of any Notes at the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, describing the transaction or transactions that constitute the Change of Control and with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 2 contracts
Sources: Indenture (Kinetic Concepts Inc), Indenture (Kinetic Concepts Inc)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will holder shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holderholder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notesthereof, plus accrued and unpaid interest interest, if any, to the date of purchase repurchase (subject to the right of Holders holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that except to the extent the Issuer shall not be obliged has previously elected to repurchase redeem Notes as described under this Section 4.03 in pursuant to Paragraph 5 on the event and reverse of the Notes.
(b) Within 30 days following any Change of Control, except to the extent that it the Issuer has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce Paragraph 5 on the principal amount at maturity reverse of the Notes held by any holder or except to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem extent all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than set forth in the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Controlparagraph are met, the Issuer will send shall mail or electronically transmit a notice (the a “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, holder with a copy to the TrusteeTrustee stating:
(1i) stating that a Change of Control has occurred or may occur and that such Holder holder has the right to require the Issuer to purchase all or any part of such Holderholder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest toand Additional Interest, but not includingif any, to the date of purchase (subject to the right of Holders holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2ii) stating the circumstances and relevant facts and financial information regarding such Change of Control;
(iii) the repurchase date (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;mailed); and
(3iv) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures instructions determined by the Issuer, consistent with this Indenturecovenant, that a Holder holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior purchased. The Issuer shall not be required to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept make a Change of Control Offer or to withdraw such acceptance.upon a Change of Control if all of the following conditions are met:
(ci) The on a pro forma basis after giving effect to such Change of Control transaction, the Issuer’s Fixed Charge Coverage Ratio would not be lower than its Fixed Charge Coverage Ratio on the date immediately prior to the consummation of the Change of Control transaction;
(ii) on a pro forma basis after giving effect to such Change of Control transaction, and immediately prior to the public announcement of such Change of Control transaction, the Fixed Charge Coverage Ratio for the Issuer shall cause is or would be, as applicable, equal to be published or higher than the notice described above through Fixed Charge Coverage Ratio for the newswire service Issuer on the Issue Date;
(iii) on a pro forma basis after giving effect to such Change of Bloomberg Control transaction, the Issuer is permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.03 herein; and
(iv) at the time such Change of Control is consummated, no Default or if Bloomberg does not then operate, any similar agency)Event of Default has occurred and is continuing or would occur as a result thereof. In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a . A Change of Control Offer may be made in advance of a Change of Control, conditional and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(c) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the purchase date. The Holders shall be entitled to withdraw their election if the Trustee or the Issuer will receive not later than one Business Day prior to the purchase date a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(d) On the purchase date, all Notes purchased by the Issuer under this Section shall be delivered to the Trustee for cancellation, and the Issuer shall pay the purchase price plus accrued and unpaid interest to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the Issuer shall be deemed to have made a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in Section 4.08(b) applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(f) At the time the Issuer delivers Notes to the Trustee which are to be accepted for purchase, the Issuer shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Issuer pursuant to and in accordance with the terms of this Section 4.08. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(g) Prior to any Change of Control Offer, the Issuer shall deliver to the Trustee an Officers’ Certificate stating that all conditions precedent contained herein to the right of the Issuer to make such offer have been complied with.
(h) The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.034.08. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 4.08, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture paragraph by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Affinion Loyalty Group, Inc.), Indenture (Affinion Loyalty Group, Inc.)
Change of Control. (a) If a Change of Control occursoccurs after the Issue Date, subject unless the Issuers have previously or concurrently electronically delivered or mailed a redemption notice with respect to all the outstanding Notes as set forth under Section 5.7(a) or Section 5.7(b), the Issuers will make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no Not later than the date that is 60 30 days after any Change of Control orControl, at the Issuer’s option, at any time prior to a Issuers will send notice of such Change of Control following Offer electronically or by first class mail, with a copy to the public announcement thereof or if a definitive agreement is in place for the Change of ControlTrustee, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any Notes at the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, describing the transaction or transactions that constitute the Change of Control Offer with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuers;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and subject to extension (in the record datecase where such notice is mailed or otherwise delivered prior to the occurrence of the Change of Control) in the event that the occurrence of the Change of Control is delayed;
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiples of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 2,000 and in integral multiples of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(1) accept for payment all Notes issued by them or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon with respect to a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer, or (2) notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described in Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, Control or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(he) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the IssuerIssuers, or any third party making a Change of Control Offer in lieu of the Issuer Issuers as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Issuers or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
(f) The Issuers will comply with the delivery requirements of Section 14(e) under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of Issuers will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 2 contracts
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to after the terms of this Section 4.03Closing Date , each Holder will shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash (a “Change of Control Payment”) equal to 101101.0% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Purchase Date), except to the extent the Issuer has previously elected to redeem the Notes pursuant to Article V of this Indenture.
(b) Prior to or within 30 days following any Change of Control, except to the extent that the Issuer has exercised its right to redeem the Notes as described under Section 5.1, the Issuer shall deliver a notice (a “Change of Control Offer”) to each Holder with a copy to the Trustee, or otherwise in accordance with the procedures of the Depositary, describing:
(i) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on a record date Record Date to receive interest on the relevant interest payment Interest Payment Date falling prior to or on the purchase date) (the “Change of Control Payment”);
(2ii) stating the repurchase transaction or transactions that constitute, or are expected to constitute, such Change of Control;
(iii) the purchase date (which shall be no earlier than 10 days from the date such notice is mailed 20 Business Days nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Controldelivered) (the a “Change of Control Payment Date”) and the record date);
(3iv) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders shall be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes, provided that the transaction or transactions that constitute paying agent receives, not later than the expiration time of the Change of ControlControl Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5viii) describing the procedures determined by the Issuer, consistent with this Indenture, that if a Holder (other than a Holder of a Global Note) is tendering for purchase less than all of its Notes, the Issuer will issue new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must follow be equal to $2,000 or an integral multiple of $1,000 in order to have its Notes repurchasedexcess thereof;
(6ix) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7x) certain the other procedures instructions determined by the Issuer, consistent with this covenant, that a holder of Notes Holder must follow in order to accept a have its Notes purchased. While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes to be made through the facilities of the Depositary in accordance with the rules and regulations thereof.
(c) The Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Issuer shall cause to be published at the address specified in the notice described above through at least three Business Days prior to the newswire service Change of Bloomberg (Control Payment Date. Holders shall be entitled to withdraw their election if the Trustee or if Bloomberg does the Issuer receive not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and later than one Business Day prior to the rules expiration of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer, a telegram, telex facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his selection to have such Note purchased.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, all Notes purchased by the Issuer will, under this Section 3.9 shall be delivered by the Issuer to the extent lawful:
(1) accept Trustee for payment all Notes or portion thereof properly tendered pursuant to cancellation, and the Change of Control Offer;
(2) deposit with Issuer shall pay the Paying Agent an amount equal to purchase price plus accrued and unpaid interest, if any, to, but not including the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be deliveredDate, to the Paying Agent the applicable Global Notes Holders entitled thereto. With respect to any Note purchased in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issuedpart, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes Issuer shall issue a new Definitive Registered Note equal in a principal amount equal at maturity to the unpurchased portion of the Notes surrendered, if any; provided that each such new original Note will be in a principal amount that is at least $200,000 and integral multiples the name of $1,000 in excess thereofthe Holder upon cancellation of the original Note.
(e) This Section 4.03 will be applicable whether or not any other Notwithstanding the provisions of this Indenture are applicable.
(f) The Section 3.9, the Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gf) Notwithstanding anything Prior to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the any Change of Control Offer. , the Issuer shall deliver to the Trustee an Officer’s Certificate stating that all conditions precedent contained herein to the right of the Issuer to make such offer have been complied with.
(g) The Issuer will shall comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.033.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.9, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 3.9 by virtue of the conflictsuch compliance.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a A Change of Control Offer and the Issuer, or any third party making may be made in advance of a Change of Control, and conditioned upon such Change of Control.
(i) On the Change of Control Offer in lieu of Payment Date, the Issuer in accordance with this Section 4.03shall, purchases to the extent permitted by law,
(i) accept for payment all of Notes issued by the Notes Issuer or portions thereof validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash Offer;
(ii) deposit with the Paying Agent an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control OfferPayment in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes owned so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Change of Control. (a) If a Change of Control occursoccurs after the Issue Date, subject to the terms of this Section 4.03, each Holder will have the right to require unless the Issuer has, prior to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of concurrently with the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that time the Issuer shall not be obliged is required to repurchase make a Change of Control Offer, delivered electronically or mailed a redemption notice with respect to all the outstanding Notes as described under this Section 4.03 in 5.7, the event and Issuer shall make an offer to the extent that it has unconditionally exercised its right to redeem purchase all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to offer described below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise at a price in accordance with cash (the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a “Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash Payment”) equal to 101% of the aggregate principal amount of such Notes thereof plus accrued and unpaid interest to, but not includingexcluding, the date of purchase (purchase, subject to the right of Holders of record on a the relevant regular record date to receive interest due on an Interest Payment Date that is prior to the relevant interest payment date) (Redemption Date; provided that to the “extent any transmitted redemption notice includes a condition that is not satisfied or waived and the redemption referenced therein does not occur, the obligation to make a Change of Control Payment”)Offer will be reinstated to the extent a Change of Control occurs thereafter. No later than 30 days following any Change of Control, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, to each Holder to the address of such Holder appearing in the security register with a copy to the Trustee or, while Notes are in global form, in accordance with the procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.8, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the paying agent receives, not later than the expiration time of the Change of Control Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain 8) the other procedures instructions, as determined by us, consistent with this Section 3.8, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptancefollow.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order to reflect thereon the portion of such so accepted together with an Officers’ Certificate stating that all Notes or portions thereof that have been tendered to and purchased by the Issuer; and.
(5c) in In the case event that the Issuer makes a Change of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issuedControl Payment, the Paying Agent, at the Issuer’s expense, Agent will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 1,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) While the Notes are in global form and if the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(e) This Section 4.03 The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and will be applicable whether or not any other deemed to have complied with its obligations under the Change of Control provisions of this Indenture are applicableby virtue of such compliance.
(f) The Issuer will shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all such Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, Control or conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the such Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hg) If Holders of not less than 9095% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party other Person making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.8, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party Person will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% the applicable Change of Control Payment plus, to the principal amount thereof plus extent not included in the Change of Control Payment, accrued and unpaid interest to interest, if any, to, but excluding excluding, the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (CPG Newco LLC), Indenture (CPG Newco LLC)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will shall have the right to require the Issuer Issuers to repurchase all or any part (equal to $200,000 2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, Notes plus accrued and unpaid interest to interest, if any, to, but not including, the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, howeverhowever that notwithstanding the foregoing, that the Issuer Issuers shall not be obliged obligated to repurchase Notes as described under pursuant to this Section 4.03 in 3.9 if the event and to the extent that it has unconditionally Issuers have previously exercised its their right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,0005.1.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send Issuers shall mail a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in the notice, and such notice shall otherwise include:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer Issuers to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest interest, if any, to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the circumstances and relevant facts and financial information regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Controlmailed) (the “Change of Control Payment Date”) and the record date);
(34) stating that any Note not tendered shall continue to accrue interest pursuant to its terms;
(5) that, unless the Issuers default in the payment of the purchase price, any Note accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest on and after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;Date; and
(46) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the IssuerIssuers, consistent with this IndentureSection 3.9, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer repurchased or to withdraw cancel such acceptanceorder of purchase.
(c) The Issuer Holders electing to have a Note purchased shall cause be required to be published surrender the Note, with an appropriate form duly completed, to the Issuers at the address specified in the notice described above through at least three Business Days prior to the newswire service purchase date. Each Holder shall be entitled to withdraw its election if the Issuers receive, not later than one Business Day prior to the purchase date, a telegram, telex, facsimile transmission or letter from such Holder setting forth the name of Bloomberg (or if Bloomberg does not then operatesuch Holder, any similar agency). In addition, if any Notes are listed on an exchange, and the rules principal amount of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control OfferNote or Notes which were delivered for purchase by such Holder and a statement that such Holder is withdrawing his election to have such Note or Notes purchased.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willIssuers shall, to the extent lawful:
: (1i) accept for payment all Notes or portion thereof portions of Notes (equal to $2,000 or an integral multiple of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer;
; (2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes so tendered;
; and (3iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating specifying the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased accepted for payment by the Issuer; and
(5) in the case of Definitive Registered NotesIssuers. The Paying Agent shall promptly mail, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered accepted, payment in an amount equal to the Change of Control Payment for such Notespurchase price, and the Trustee will shall promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail and deliver (or cause to be transferred by book-book entry) to each Holder of Definitive Registered Notes such Holders a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such Note purchased and each new Note will issued shall be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be applicable whether or not any other provisions paid to the Person in whose name a Note is registered at the close of this Indenture are applicablebusiness on such record date, and no additional interest shall be payable to Holders who tender pursuant to the Change of Control Offer.
(f) The Issuer will Issuers shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(g) The Issuers shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly properly withdrawn under such Change of Control Offer.
(gh) Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(i) The Issuer will Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.033.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.9, the Issuer will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Quiksilver Inc), Indenture (Quiksilver Inc)
Change of Control. (a) If a Change of Control Triggering Event occurs, subject the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but not including, the date of purchase (purchase, subject to the right of Holders of record on the relevant record date Record Date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedInterest Payment Date. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control orTriggering Event, at the Issuer’s option, at any time prior to a Company shall send notice of such Change of Control following Offer by first class mail, with a copy to the public announcement thereof or if a definitive agreement is in place for the Change of ControlTrustee, the Issuer will send a notice (the “Change of Control Offer”) to each Holder to the address of any such Notes by mail Holder appearing in the Note Register with a copy to the Trustee or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 1016 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on, but not including, the Change of Control Payment Date unless Date;
(5) Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third business day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes, provided that the Paying Agent receives, not later than the close of business on the last day of the Change of Control Offer period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing his tendered Notes and his election to have such Notes purchased;
(7) if such notice is mailed prior to the occurrence of a Change of ControlControl Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of ControlControl Triggering Event; and
(7) certain other procedures 8) that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Holders whose Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer only in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to part will be delivered, to the Paying Agent the applicable Global issued new Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will which unpurchased portion must be equal to $2,000 in a principal amount that is at least $200,000 and or an integral multiples multiple of $1,000 in excess thereof.
(eb) This Section 4.03 will be applicable whether or not any other provisions While the Notes are in global form and the Company makes an offer to purchase all of this Indenture are applicablethe Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of Depositary, Euroclear and Clearstream, subject to their rules and regulations.
(fc) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any other Person making a Change of Control Offer in lieu of the Company as described below, purchase all of the Notes validly tendered and not withdrawn by such Holders, the Company shall have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to Section 1016(a) hereof, to redeem all Notes that remain Outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, to, but not including, the date of redemption, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(d) The Issuer will Company shall not be required to make a Change of Control Offer upon following a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) notice of redemption has been given pursuant to this Indenture as described under Section 1101, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of ControlControl Triggering Event, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(e) The Issuer will comply, to the extent applicable, Company shall comply with the requirements of Section 14(e) of under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will Company shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(f) On the Change of Control provisions of this Indenture Payment Date, the Company shall, to the extent permitted by virtue of the conflict.law,
(h1) If Holders of not less than 90% in aggregate principal amount of the outstanding accept for payment all Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly portions thereof properly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to redeem all the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating that remain outstanding following such purchase at Notes or portions thereof have been tendered to and purchased by the Company.
(g) The Paying Agent shall promptly mail to each Holder the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail to each Holder a price new Note equal in cash equal principal amount to 101% any unpurchased portion of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for Notes surrendered, if any; provided that each such redemption. In determining whether the Holders of at least 90% of the aggregate new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the then outstanding Notes have validly tendered and not validly withdrawn Notes in a results of the Change of Control Offer, Notes owned by any Affiliate of Offer on or as soon as practicable after the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Payment Date.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Change of Control. (a) If The Issuer shall deliver to the Requisite Holders a Change of Control occurs, subject Notice no less than thirty (30) days prior to any anticipated Change of Control Effective Date. The Requisite Holders will be required to make any applicable election (a “Change of Control Election”) with respect to the terms of this Section 4.03, each Holder will have the right Notes in writing by notice to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days tenth (10th) day after any delivery of the applicable Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice Notice (the “Change of Control OfferElection Deadline”) ). Following delivery of such Change of Control Notice, the Issuer shall provide the Requisite Holders with such information regarding the terms of such Change of Control as they may reasonably request, subject to each Holder of any restrictions on the Issuer pursuant to any applicable confidentiality agreement. Any such election to convert the Notes by mail or otherwise in accordance connection with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject shall be irrevocable once delivered to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);Issuer.
(2b) stating the repurchase date (which shall be no earlier than 10 days from the date If, in connection with such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change common stock of Control Offer the Issuer is conditional on converted into, or exchanged for, in whole or in part, Common Equity of a Public Issuer, subject to the occurrence closing of such Change of Control; and,
(7i) certain other procedures that a holder of Notes must follow to accept if the Requisite Holders timely deliver a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agencyElection as set forth in Section 4(a). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On Note Obligations Amount shall automatically convert on the Change of Control Payment Date, if Effective Date (or on the twentieth (20th) Trading Day immediately following the Change of Control shall have occurred, Effective Date in the Issuer will, to event clause (B) of the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the definition of Change of Control Offer;
(2Public Issuer Conversion Price applies) deposit with the Paying Agent into an amount of shares of Qualified Issuer Publicly Traded Shares of such Public Issuer (and/or cash as determined in (iii) below) equal to the Change of Control Payment in respect of all Notes so tendered;Public Issuer Conversion Amount, or
(3ii) if the Requisite Holders do not deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make timely a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer Notice as provided in the manner, at the times and otherwise Section 4(a) in compliance connection with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional at the option of the Issuer (in its sole discretion), either (A) the Issuer will prepay the Note Obligations Amount in cash on the Change of Control Effective Date (upon which prepayment the Notes will cease to be outstanding), or (B) the Note shall automatically convert into a note with terms of the Nine Year Extension. The Issuer shall provide written notice of its election pursuant to the preceding sentence no later than the closing date of such Change of Control, provided that if the Issuer provides no such notice, the Nine Year Extension shall apply. In the case of clause (i), in a Change of Control transaction in which common stock of the Issuer is converted into part Qualified Issuer Publicly Traded Shares and part cash, the Change of Control Public Issuer Conversion Amount shall be paid in part cash and part Qualified Issuer Publicly Traded Shares, with the percentage of cash of the Change of Control Public Issuer Conversion Amount being determined on a proportionate basis (ignoring for this purpose any other type of property receivable in connection therewith) determined by comparing the aggregate cash received by holders of common stock of the Issuer to the aggregate value of Qualified Issuer Publicly Traded Shares received by holders of common stock of the Issuer, based on the average VWAP for such Qualified Issuer Publicly Traded Equity Shares for each Trading Day during the five (5) Trading Day period ending the day before the Change of Control Effective Date. The remainder of the Change of Control Public Issuer Conversion Amount will be paid in Qualified Issuer Publicly Traded Shares in accordance with the definition of Change of Control Public Issuer Conversion Amount. In the event information regarding such proposed Change of Control has not been widely-disseminated for at least twenty (20) Business Days prior to the Change of Control Effective Date, clause (A) of the definition of Change of Control Public Issuer Conversion Price will be used to determine the cash amount on the Change of Control Effective Date; provided, however, no later than the 23rd Trading Day following the Change of Control Effective Date, the Change of Control Public Issuer Conversion Price will be calculated pursuant to clause (B) of the definition of Change of Control Public Issuer Conversion Price to determine the number of Qualified Issuer Publicly Traded Shares necessary to satisfy the stock portion of the consideration, such that any changes in the VWAP following the Change of Control Effective Date will be reflected only in the stock portion of the consideration.
(c) If the Successor Issuer with respect to such Change of Control is a not a Public Issuer, or if the common stock of the Issuer is not exchanged for or otherwise converted into Common Equity of another Person in connection with such Change of Control, then subject to the closing of such Change of Control,
(i) if the Requisite Holders timely deliver a Change of Control Election as set forth in Section 4(a), the Issuer shall prepay the Note Obligations Amount in cash within thirty (30) days following the Change of Control Effective Date (upon which prepayment the Notes will cease to be outstanding), or
(ii) if the Requisite Holders do not timely deliver a Change of Control Notice as set forth in Section 4(a), the Note Obligations Amount shall automatically convert on the Change of Control Effective Date into an amount of Last Qualified Round Equivalent Securities equal to the Last Qualified Round Equivalent Securities Conversion Amount, and (if the Last Qualified Round Equivalent Securities are converted into or exchanged for other securities, or cash or other property, upon such Change of Control, if a definitive agreement is in place for ) such Last Qualified Round Equivalent Securities shall immediately convert into the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act type and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate securities (of the Issuer or by funds controlled or managed by any Affiliate of the Issueranother issuer), or any successor thereof, shall be deemed to be outstanding for the purpose of cash and other property receivable upon such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified thereinby such Last Qualified Round Equivalent Securities, or into which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a such Last Qualified Round Equivalent Securities are converted or exchanged upon such Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the NotesControl.
Appears in 2 contracts
Sources: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc), Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), the Company shall make an offer to purchase all of the Notes pursuant to the terms offer (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101101.0% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer Company will send a deliver or cause to be delivered notice (the “of such Change of Control Offer”) to each Holder of any such Notes by mail or otherwise Offer electronically in accordance with the procedures set forth in this Indentureof DTC or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register, with the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Company;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Company, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Company.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(ie) The provisions of this Indenture relating relative to the IssuerCompany’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may may, to the extent permitted by Article IX hereof, be waived or modified with the written consent of holders the Holders of a majority in outstanding principal amount of the then outstanding Notes.
(f) While the Notes are in global form and the Company makes an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(h) A sale, lease or other disposition by the Company of any part of its assets shall not be deemed to constitute the sale, lease or other disposition of substantially all of its assets for purposes of this Indenture if the fair market value of the assets retained by the Company exceeds 100% of the aggregate principal amount of all outstanding Notes and any other outstanding Indebtedness of the Company that ranks equally with, or senior to, the Notes with respect to such assets. This clause (h) is not intended to limit the Company’s sales, leases or other dispositions of less than substantially all of its assets.
Appears in 2 contracts
Sources: Indenture (Builders FirstSource, Inc.), Indenture (Builders FirstSource, Inc.)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless a third party makes a Change of Control Offer or the Issuer has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes pursuant to Section 3.9(c), the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (a “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedinterest, howeverif any, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not includingexcluding, the date of purchase (subject to repurchase; provided that if the right of Holders of record repurchase date is on a or after the record date to and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive interest on the relevant interest payment date) repurchase date (the “Change of Control Payment”). Within 30 days following any Change of Control Repurchase Event, the Issuer will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the procedures of Euroclear or Clearstream, as applicable, or, at the Company’s option, by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the applicable procedures of Euroclear or Clearstream, as applicable, with the following information (provided that to the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Section 3.9, the Company shall not be deemed to have breached its obligations under this Section 3.9 by virtue of compliance therewith):
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered and not validly withdrawn pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or validly withdrawn will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered and that the unpurchased portion of the Notes must be equal to at least €100,000 or any integral multiple of €1,000 in excess of €100,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control;
(9) describing the transaction or transactions that constitute the Change of Control Repurchase Event; and
(710) certain the other procedures instructions, as determined by the Issuer, consistent with this Section 3.9, that a holder Holder must follow. The Paying Agent will promptly mail to each Holder so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes must follow to accept surrendered, if any; provided that each such new Note will be in a minimum principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to withdraw the Person in whose name a Note is registered at the close of business on such acceptancerecord date.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawfulpermitted by law:
(1) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered the Notes so accepted for purchase together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofCompany.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If In the event that Holders of not less than 90% in of the aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in accept a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn held by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such the purchase pursuant to the Change of Control Offer described abovein this Section 3.9, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% the Change of Control Payment plus, to the principal amount thereof plus extent not included in the Change of Control Payment, accrued and unpaid interest to on the notes that remain outstanding, to, but excluding excluding, the date of redemption (subject to the delivery right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
(e) While the Notes are in global form and the Issuer makes an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer or by funds controlled or managed by any Affiliate Notes through the facilities of the IssuerDepositary, or any successor thereof, shall be deemed subject to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)its rules and regulations.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.034.14, each Holder will have the right to require the Issuer Issuers to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer Issuers shall not be obliged obligated to repurchase the Notes as described under this Section 4.03 4.14 in the event and to the extent that it has they have unconditionally exercised its their right to redeem all of the Notes pursuant to under Section 3.07 5 of the Notes or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has Issuers have unconditionally exercised its their right to redeem all the Notes pursuant to as described under Section 3.07 5 of the Notes or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer Issuers will send mail (or otherwise deliver) a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this IndentureNotes, with a copy to the Trustee:
(1i) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer Issuers to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2ii) stating the repurchase date (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed mailed) and 60 days after the Change of Control) record date (the “Change of Control Payment Date”) and the record date);
(3iii) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4iv) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5v) describing the procedures determined by the IssuerIssuers, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;; and
(6vi) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer Issuers will, to the extent lawful:
(1i) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;;
(3iii) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer Issuers in the Change of Control Offer;
(4iv) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the IssuerIssuers; and
(5v) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the relevant Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. Issuers.
(d) If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, Agent will promptly mail to pay each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its (or an authenticating agent to authenticate andagent) will, at the Issuer’s expensecost of the Issuers, promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 150,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 For so long as the Notes are listed on the Global Exchange Market of Euronext Dublin and the rules of such exchange so require, the Issuers will publish notices relating to the Change of Control Offer in a daily newspaper with general circulation in Ireland (which is expected to be applicable whether The Irish Times) or not any other provisions to the extent and in the manner permitted by such rules, post such notices on the official website of this Indenture are applicableEuronext Dublin (▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇).
(f) The Issuer Issuers will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditional conditioned upon the consummation of such Change of Control, if a definitive agreement is in place providing for the Change of Control at the time of making of the Change of Control Offer. Offer is made.
(g) The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.034.14. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
Change of Control. (a) If there is a Change of Control occurs(as defined in the Plan) during the Employment Term, then fifty percent (50%) of all outstanding unvested shares subject to the terms Option as of the date of the Change of Control shall become fully vested; provided that this Section 5(b) shall only apply to the first Change of Control that occurs during the Employment Term. If the unvested portion of the Option (after giving effect to the accelerated vesting in the preceding sentence) is not continued, substituted or assumed (as provided in Section 8.4(b)(1) of the Plan) in connection with the first Change of Control that occurs during the Employment Term, the entire remaining unvested portion of the Option, if any, shall become fully vested, provided that, if the Company reasonably determines that it will not result in adverse tax consequences under Section 409A of the Code, the Company may in its sole discretion elect in lieu of the accelerated vesting set forth in this sentence to convert the unvested portion of the Option (which, for the avoidance of doubt, shall not include any portion of the Option that vests in the Change of Control pursuant to the first sentence of this Section 4.03, each Holder will have 5(e)) into the right to require the Issuer to repurchase all or any part (equal to $200,000 or receive an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price amount in cash equal to 101% the excess, if any, of (y) the principal amount product of (I) the Notes, plus accrued and unpaid interest consideration paid in respect of one share of Common Stock in connection with the Change of Control (with the cash value of any non-cash consideration being equal to the date fair market value, as determined by the Board in good faith, of purchase such non-cash consideration) multiplied by (II) the number of shares of Common Stock subject to the right unvested portion of Holders the Option over (z) the aggregate exercise price of record on the relevant record date to receive interest due on unvested portion of the relevant interest payment dateOption (the “Deferred Cash Payment”); provided, however, provided further that the Issuer shall not be obliged to repurchase Notes as described under nothing in this Section 4.03 5(e) shall prevent the Company from cancelling the Option (as provided in Section 8.4(b)(4) of the Plan) in the event and to the extent Deferred Cash Payment would be zero. The Deferred Cash Payment, if any, will be made on the later of (i) the date(s) that it has unconditionally exercised its right to redeem all of payment(s) would be made in the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control orto holders of Common Stock generally or (ii) subject to the Executive’s continued employment with the Company on each applicable vesting date, at in accordance with the Issuer’s option, at any time prior vesting schedule applicable to a Change the Option as of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, including the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures accelerated vesting provisions set forth in this IndentureSections 5(b)-(d), with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”8(d)(5) and the record date;
(38(e) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicableAgreement.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Executive Employment Agreement (Biozone Pharmaceuticals, Inc.), Executive Employment Agreement (Biozone Pharmaceuticals, Inc.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in In the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to there occurs a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change any holder of Control Offer”) to each Holder record of any such Notes by mail or otherwise shares of Series A Preferred Stock, in accordance with the procedures set forth in Section E of this IndentureArticle V, with a copy may require the Corporation to redeem any or all of the shares of Series A Preferred Stock held by such holder in an amount per share equal to the Trustee:
sum of (1i) stating that a Change the amount, if any, of Control has occurred all unpaid dividends accumulated thereon to the date of actual payment thereof, whether or may occur not such dividends have been declared, and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to (ii) 101% of Stated Value (the principal amount "CHANGE OF CONTROL PRICE"). By accepting a share of Series A Preferred Stock the holder thereof shall be deemed to have acknowledged and agreed that (a) such Notes plus accrued holder's right, to receive payment of the Change in Control Price is subject and unpaid interest to, but not including, the date subordinated in right of purchase (subject payment to the payment in full and discharge of all amounts of principal, interest and fees (however denominated) then outstanding under the Credit Agreement and the Senior Subordinated Notes and (b) until payment in full of all such amounts (however denominated) under the Credit Agreement and the Senior Subordinated Notes has been made in cash, no payment, whether directly or indirectly, by exercise of any right of Holders set off or otherwise in respect of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease Price shall be made by the Corporation, and, notwithstanding anything to accrue interest after the contrary in Section F of this Article V, no deposit in respect of the Change of Control Payment Date unless Price shall be made pursuant to Section F of this Article V. In the Change event that any payment by, or distribution of Control Payment the assets of, the Corporation of any kind or character (whether in cash, property or securities, whether directly or indirectly, by exercise of any right of set-off or otherwise and whether as a result of a bankruptcy proceeding with respect to the Corporation or otherwise) shall be received by a holder of Series A Preferred Stock at any time when such payment is not paidprohibited by this paragraph, such payment shall be held in trust for the benefit of, and that any Notes shall be paid over to, the lenders under the Credit Agreement or part thereof not tendered will continue the holders of Senior Subordinated Notes, as the case may be, as their interests may appear. The preceding two sentences address the relative rights of holders of Series A Preferred Stock or Debentures, on the one hand, and the lenders under the Credit Agreement or the holders of Senior Subordinated Notes, as the case may be, on the other hand, and nothing in this Certificate of Designations shall impair, as between the Corporation and the holders of Series A Preferred Stock or Debentures, the obligation of the Corporation, which is absolute and unconditional, to accrue interest;
(4) describing pay amounts due in respect of the circumstances Series A Preferred Stock and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Debentures in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of their terms. Upon a Change of Control, stating that the Change of Control Offer is conditional on Corporation shall pay all amounts outstanding under the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, Credit Agreement and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, Indenture to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes necessary in order to reflect thereon permit the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making payment of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictPrice hereunder.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Investment Agreement (Magellan Health Services Inc), Investment Agreement (Magellan Health Services Inc)
Change of Control. (a) If In connection with a Change of Control occursControl, and subject to any approval of the terms Change of this Section 4.03, each Holder will Control by the holders of Class A Common Stock and Class B Common Stock that may be required:
(i) The Corporation shall have the right to require the Issuer Member to repurchase all effectuate an Exchange of some or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or Member’s Exchangeable Units, and a corresponding number of shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free and clear of all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce Liens), with the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control Corporation or, at the Issueroption of the Corporation, with any Subsidiary of the Corporation, in each case, in exchange for the delivery to the Member (or its designee) of a number of shares of Class A Common Stock that is equal to the product of the applicable Exchanged Unit Amount and the Exchange Rate (such Exchange, a “Change of Control Exchange”); provided that, if the Corporation requires the Member to Exchange less than all of its outstanding Exchangeable Units (and corresponding number of shares of Class B Common Stock after taking into account the Exchange Rate), the Member’s optionparticipation in the required Exchange shall be reduced pro rata based on ownership of Exchangeable Units. For the avoidance of doubt, at any time prior Exchangeable Units and a corresponding number of shares of Class B Common Stock held by the Member that are not Exchanged pursuant to a Change of Control following Exchange may be Exchanged by the public announcement thereof or if a definitive agreement is in place for Member after the Change of Control, the Issuer will send a notice (the “Change of Control Offer”transaction pursuant to Section 2.1(a) subject to each Holder of any such Notes by mail or otherwise and in accordance with the procedures set forth in terms thereof.
(ii) The election of the Corporation pursuant to this Indenture, with Section 2.1(b) shall be at the sole discretion of the Corporation upon the approval thereof by a copy majority of the Board of Directors of the Corporation.
(iii) Any Exchange pursuant to this Section 2.1(b) shall be effective immediately prior to the Trustee:
(1) stating that a consummation of the Change of Control has occurred or may occur and that (and, for the avoidance of doubt, shall not be effective if such Holder has the right to require the Issuer to purchase all or any part Change of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but Control is not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment dateconsummated) (the “Change of Control PaymentExchange Date”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed . From and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless Exchange Date, (x) the Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section 2.1(b) shall be deemed to be transferred to the Corporation, or the exchanging Subsidiary, as applicable, on the Change of Control Payment is not paid, Exchange Date and that (y) the Member shall cease to have any Notes or part thereof not tendered will continue rights with respect to accrue interest;the Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section 2.1(b) (other than the right to receive shares of Class A Common Stock pursuant to Section 2.1(b)(i) upon compliance with its obligations under Section 2.1(c)).
(4iv) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the The Corporation shall provide written notice of an expected Change of Control;
Control to the Member within the earlier of (x) five (5) describing Business Days following the procedures determined by execution of the Issueragreement with respect to such Change of Control and (y) ten (10) Business Days before the proposed date upon which the contemplated Change of Control is to be effected, consistent with this Indenture, that a Holder must follow indicating in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that such information as may reasonably describe the Change of Control Offer is conditional on transaction, subject to applicable law, including the occurrence date of execution of such Change agreement or such proposed effective date, as applicable, the amount and types of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause consideration to be published the notice described above through the newswire service paid for Exchangeable Units and shares of Bloomberg (Class B Common Stock or if Bloomberg does not then operateshares of Class A Common Stock, any similar agency). In additionas applicable, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case which consideration shall be equivalent whether paid for Exchangeable Units and shares of Global NotesClass B Common Stock or shares of Class A Common Stock), deliverany election with respect to types of consideration that a holder of Exchangeable Units and shares of Class B Common Stock or shares of Class A Common Stock, or cause to as applicable, shall be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required entitled to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance connection with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such the percentage of total Exchangeable Units and shares of Class B Common Stock or shares of Class A Common Stock, as applicable, to be transferred to the acquirer by all shareholders in the Change of Control, if a definitive agreement is in place and the number of Exchangeable Units and shares of Class B Common Stock held by the Member that the Corporation intends to require to be Exchanged for the Change shares of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations Class A Common Stock in connection with the repurchase Change of Notes pursuant Control. The Corporation shall update such notice from time to this Section 4.03time to reflect any material changes to such notice. To The Corporation may satisfy any such notice and update requirements described in the extent that the provisions of any securities laws preceding two sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9, Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A or regulations conflict with provisions of this Indenture, the Issuer will comply similar form filed with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictSEC.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Exchange Agreement (Maravai Lifesciences Holdings, Inc.), Exchange Agreement (Maravai Lifesciences Holdings, Inc.)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuers have previously or substantially concurrently therewith delivered a redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a) or Section 5.7(d) (unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the terms failure of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 condition precedent contained in the event and applicable redemption notice to be satisfied), the extent that it has unconditionally exercised its right Issuers shall make an offer to redeem purchase all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date. Within 45 days following any Change of Control, the Issuers will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuers;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuers defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission, electronic transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the applicable Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer, (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied or (z) after the public announcement that a definitive agreement for a Change of Control has been entered into (i) the Issuers (or any Affiliate of the Issuers) have made an offer to purchase all Notes validly tendered and not withdrawn at a cash price no less than 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to but excluding the date of repurchase, (ii) the relevant offer to purchase documentation discloses that a Change of Control Offer will not be required to be made if all Notes validly tendered and not withdrawn in the Alternate Offer are purchased and (iii) the Issuers or such Affiliate of the Issuers purchases all Notes validly tendered and not withdrawn in accordance therewith (an “Alternate Offer”).
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the . If such Change of Control at Offer is subject to satisfaction of one or more conditions precedent, such Change of Control Offer shall state that, in the Issuers’ discretion, the repurchase date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuers in their sole discretion), or such Change of making Control Offer may be rescinded in the event that any or all such conditions shall not have been or, in the Issuers’ sole determination, may not be satisfied (or waived by the Issuers in their sole discretion). If a notice relating to a Change of Control Offer that is subject to one or more conditions precedent (other than the occurrence of a Change of Control) is later rescinded as described above as a result of the failure of such condition(s) to be satisfied or waived (or as a result of the Issuers determining that such will be the case), the offer described in such notice will not be deemed a valid “Change of Control Offer” for purposes of this Section 3.9.
(e) [Reserved]
(f) While the Notes are in global form and the Issuers make an offer to purchase all of the Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will Issuers shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictcompliance therewith.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Pactiv Evergreen Inc.), Indenture (Pactiv Evergreen Inc.)
Change of Control. (a) If In connection with a Change of Control occursControl, and subject to any approval of the terms Change of this Section 4.03, each Holder will Control by the holders of Class A Common Stock and Class B Common Stock that may be required:
(i) Vivid Seats shall have the right to require each Member (other than Vivid Seats and its Subsidiaries) to effectuate a Redemption by the Issuer Company of some or all of such Member’s Redeemable Units, relating to repurchase a corresponding number of shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free and clear of all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofLiens) of such Holder’s Notes at Member, in each case, in exchange for the delivery to such Member (or its designee) of a purchase price in cash number of shares of Class A Common Stock that is equal to 101% the product of the principal amount of applicable Redeemed Unit Amount and the NotesExchange Rate (such Redemption, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any a “Change of Control orRedemption”); provided that, at if Vivid Seats elects to require such Member to redeem less than all of its outstanding Redeemable Units (and the Issuercorresponding number of shares of Class B Common Stock after taking into account the Exchange Rate), such Member’s optionparticipation in the required Redemption shall be reduced pro rata based on ownership of Redeemable Units. For the avoidance of doubt, at any time prior Redeemable Units that are not redeemed pursuant to a Change of Control following Redemption may be caused to be redeemed by the public announcement thereof or if a definitive agreement is in place for Member after the Change of Control, the Issuer will send a notice (the “Change of Control Offer”transaction pursuant to Section 9.1(a) subject to each Holder of any such Notes by mail or otherwise and in accordance with the procedures set forth in terms thereof.
(ii) The election of Vivid Seats pursuant to this Indenture, with Section 9.1(b) shall be at the sole discretion of Vivid Seats upon the approval thereof by a copy majority of the Board of Directors of Vivid Seats.
(iii) Any Redemption pursuant to this Section 9.1(b) shall be effective immediately prior to the Trustee:
(1) stating that a consummation of the Change of Control has occurred or may occur and that (and, for the avoidance of doubt, shall not be effective if such Holder has the right to require the Issuer to purchase all or any part Change of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but Control is not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment dateconsummated) (the “Change of Control PaymentRedemption Date”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed . From and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless Redemption Date, such Member shall cease to have any rights with respect to the Redeemable Units (and the corresponding number of shares of Class B Common Stock to be cancelled) that are subject to the Redemption pursuant to this Section 9.1(b) (other than the right to receive shares of Class A Common Stock pursuant to Section 9.1(b)(i) upon compliance with its obligations under Section 9.1(c)).
(iv) Vivid Seats shall provide written notice of an expected Change of Control to each Member within the earlier of (x) five (5) Business Days following the execution of the agreement with respect to such Change of Control and (y) ten (10) Business Days before the proposed date upon which the contemplated Change of Control is to be effected, indicating in such notice such information as may reasonably describe the Change of Control Payment is not paidtransaction, and that any Notes or part thereof not tendered will continue subject to accrue interest;
(4) describing applicable law, including the circumstances and relevant facts regarding the transaction or transactions that constitute the Change date of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence execution of such Change agreement or such proposed effective date, as applicable, the amount and types of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause consideration to be published the notice described above through the newswire service paid for Redeemable Units and shares of Bloomberg (Class B Common Stock or if Bloomberg does not then operateshares of Class A Common Stock, any similar agency). In additionas applicable, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case which consideration shall be equivalent whether paid for Redeemable Units and shares of Global NotesClass B Common Stock or shares of Class A Common Stock), deliverany election with respect to types of consideration that a holder of Redeemable Units and shares of Class B Common Stock or shares of Class A Common Stock, or cause to as applicable, shall be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required entitled to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance connection with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such the percentage of total Redeemable Units and shares of Class B Common Stock or shares of Class A Common Stock, as applicable, to be transferred to the acquirer by all shareholders in the Change of Control, if a definitive agreement is in place and the number of Redeemable Units and shares of Class B Common Stock held by each Member that Vivid Seats intends to require to be redeemed for the Change shares of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations Class A Common Stock in connection with the repurchase Change of Notes pursuant Control. Vivid Seats shall update such notice from time to this Section 4.03time to reflect any material changes to such notice. To Vivid Seats may satisfy any such notice and update requirements described in the extent that the provisions of any securities laws preceding two sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9, Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A or regulations conflict with provisions of this Indenture, the Issuer will comply similar form filed with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictSEC.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Vivid Seats Inc.), Transaction Agreement (Horizon Acquisition Corp)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuers have previously or concurrently delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Issuers shall make an offer to purchase all of the Notes pursuant to the terms of offer described in this Section 4.03, each Holder will have 3.9 (the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest (including Additional Amounts, if any), if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer Issuers will send a deliver notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of any Notes at the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, describing the transaction or transactions that constitute the Change of Control and with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuers;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after delivered, except in the case of a conditional Change of Control) Control Offer made in advance of a Change of Control as described in clause (8) below (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amounts, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(d) [Reserved].
(e) The Issuer Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of Canadian Securities Legislation and Rule 14e-1 under the Exchange Act and any other securities laws laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer Issuers will comply with the applicable securities laws laws, rules and regulations and will shall not be deemed to have breached its their obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Inc.)
Change of Control. (a) If Upon the occurrence of a Change of Control occursafter the Issue Date, unless the Issuers have previously or concurrently sent a redemption notice with respect to all the outstanding Notes as described under Section 3.01, the Issuers will make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Amounts, if any, to, but not including, the date of purchase, subject to the terms right of Holders of record of the Notes at the close of business on the relevant record date to receive interest due on the relevant interest payment date falling prior to or on the purchase date.
(b) Within 30 days following any Change of Control, the Issuers will send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee and Paying Agent, to each Holder of Notes to the registered address of such Holder or otherwise electronically in accordance with the procedures of Euroclear and Clearstream, with the following information:
(i) that a Change of Control Offer is being made pursuant to this Section 4.03, each 4.08 and that such Holder will have has the right to require the Issuer Issuers to repurchase purchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) a portion of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notesthereof, plus accrued and unpaid interest to and Additional Amounts, if any, to, but not including, the date of purchase (purchase, subject to the right of Holders of record of the Notes at the close of business on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time falling prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment purchase date) (the “Change of Control Payment”);
(2ii) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) or otherwise delivered (the “Change of Control Payment Date”) and the record date);
(3iii) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(iv) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6v) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and;
(7vi) certain other procedures that a holder of Holders electing to have any Notes must follow purchased pursuant to accept a Change of Control Offer or will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(vii) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuers to purchase such acceptanceNotes, provided that the applicable paying agent receives, not later than the close of business on the second Business Day prior to the Change of Control Payment Date, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased; and
(viii) the instructions, as determined by the Issuers, consistent with this Section 4.08, that a Holder must follow. Notes purchased by the Issuers pursuant to a Change of Control Offer will have the status of Notes issued but not outstanding or will be retired and cancelled at the option of the Issuers. Notes purchased by a third party pursuant to the preceding paragraph will have the status of Notes issued and outstanding. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the purchase by the Issuers of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willIssuers shall, to the extent lawful:permitted by law,
(1) accept for payment all Notes issued by them or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent applicable paying agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent for cancellation the applicable Global Notes in order so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee and Paying Agent stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofIssuers.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fd) The Issuer will Issuers shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(he) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the IssuerIssuers, or any third party making a Change of Control Offer in lieu of the Issuer Issuers as described in accordance with this Section 4.034.08(d), purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Issuers or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to and Additional Amounts, if any, to, but excluding not including, the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes applicable redemption date.
(f) Other than as specifically provided in a Change of Control Offerthis Section 4.08, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption purchase pursuant to this Section 4.03 4.08 shall be made in accordance with Section 3.03 (other than pursuant to the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the NotesSections 3.04, 3.07 and 3.08 hereof.
Appears in 2 contracts
Change of Control. (a) If Upon the occurrence of a Change of Control occursRepurchase Event, subject unless all Notes have been called for redemption pursuant to Section 3.1 hereof, the terms Issuer shall make an offer (a “Change of this Section 4.03, Control Offer”) to each Holder will have the right to require the Issuer of Outstanding Notes to repurchase all or any part (equal to $200,000 2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase repurchase price in cash equal to 101% of the aggregate principal amount of the Notes, Notes repurchased plus any accrued and unpaid interest (the “Change of Control Payment”) on the Notes repurchased to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000purchase.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control Repurchase Event or, at the Issuer’s option, at any time prior to a any Change of Control following Control, but after the public announcement thereof or if a definitive agreement is in place for of the Change of Control, the Issuer will send shall mail, or cause to be mailed, a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this IndentureHolder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and shall specify, without limitation, the following:
(1i) stating that a the Change of Control has occurred or may occur Offer is being made pursuant to this Section 4.1 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2ii) stating the repurchase date (Change of Control Payment and the purchase date, which shall be a Business Day no earlier than 10 30 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) mailed, other than as may be required by law (the “Change of Control Payment Date”) and the record date);
(3iii) stating the CUSIP numbers for the Notes;
(iv) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders will be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of ControlControl Payment Date, a facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5viii) describing that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the procedures unpurchased portion of the Notes surrendered, which unpurchased portion will be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and
(ix) the other instructions, as determined by the Issuer, consistent with this IndentureSection 4.1, that a Holder must follow in order to have its Notes repurchased;
(6) if such follow. If the notice is mailed prior to the occurrence date of a consummation of the Change of Control, stating the notice shall state that the Change of Control Offer is conditional conditioned on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer being consummated on or prior to withdraw such acceptancethe Change of Control Payment Date.
(c) The Issuer shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent those laws and regulations are applicable in connection with the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules repurchase of the exchange so requireNotes as a result of a Change in Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.1, the Issuer will notify comply with the exchange applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.1 by virtue of the results of any Change of Control Offersuch conflict.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1i) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so or portions of Notes properly tendered;; and
(3iii) deliver or cause to be delivered to the Trustee the Notes so properly accepted, together with an Officer’s Officers’ Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;Issuer.
(4e) The Paying Agent shall promptly mail or wire transfer, in accordance with the case instructions given to the Issuer by the Holders of Global the Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-book entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture Section 4.1 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly properly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Becton Dickinson & Co), Third Supplemental Indenture (CAREFUSION Corp)
Change of Control. (a) If The Liberty Member will give the Fox Member prompt written notice if a Change of Control occurs or is proposed to occur pursuant to one or more binding agreements with respect to the Liberty Member and the Fox Member or the News America Member, as the case may be, will give the Liberty Member prompt written notice if a Change of Control occurs or is proposed to occur pursuant to one or more binding agreements with respect to the Fox Member or the News America Member (a "Change of Control Notice"). A party entitled to receive a Change of Control Notice (a "CC Rights Holder") will have the right but not the obligation, exercisable by written notice (an "Acceptance Notice") given within 90 days after the receipt of a Change of Control Notice, to require the Member experiencing the Change of Control to sell all Interests held by its Member Group to the CC Rights Holder or its designee for a cash purchase price equal to the Fair Market Value thereof (determined as provided in subsection (b) of this Section 2.5), subject, in the case of a Change of Control Notice given before a Change of Control has occurred, to occurrence of the Change of Control.
(b) The Fair Market Value of each Interest required to be determined pursuant to the preceding paragraph will be equal to the Fair Market Value of the Person in which such Interest is owned as of the last day of the fiscal quarter immediately preceding the fiscal quarter in which the Change of Control occurs, multiplied by the percentage (expressed as a decimal) that such Interest represents of all outstanding Interests in such Person. If the parties cannot agree on a Fair Market Value of any Interest subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 sale within 15 days after the Change giving of Control) (an Acceptance Notice, the “Change Fair Market Value of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment such Interest will be determined by appraisal pursuant to Article 15 of the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceCompany Operating Agreement.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results closing of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To 2.5 will be held at the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue principal office of the conflict.
Company at 11:00 a.m. (hlocal time) If Holders of not less than 90% in aggregate principal amount on the date that is 10 Business Days after final determination of the outstanding Notes validly tender purchase price or, if later, five Business Days after the parties obtain all consents and do not validly withdraw such Notes waivers from governmental authorities and other third parties (each a "material consent") the failure to obtain which would be likely to result in (A) material liability to either Member Group if the purchase were to take place or (B) the purchasing Member Group being deprived of all or a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu material part of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant benefits incident to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed Interests to be outstanding for the purpose of such Change of Control Offerpurchased. Any redemption If a purchase pursuant to this Section 4.03 shall 2.5 requires filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, the requirement for obtaining a consent for purposes of this Section will be made in accordance with deemed satisfied if the applicable waiting period under that Act has expired or has been terminated without the receipt of a notice of objection or the commencement or threat of litigation by a government entity to restrain the consummation of the purchase. If any material consent cannot be obtained within six months after the final determination of the purchase price, the parties will use their reasonable best efforts to agree on a method by which each party can be afforded the economic equivalent of the desired transfer. The parties will use their reasonable best efforts to cause the conditions set forth above to any purchase pursuant to this Section 3.03 2.5 to be satisfied as promptly as practicable after an Acceptance Notice is given. At the closing, the purchasing Member Group will cause the purchase price to be wire transferred to the account designated by the selling Member Group, and the selling Member Group will transfer the Interests, free and clear of all liens, claims and encumbrances (other than any encumbrances securing financing obtained by the time periods specified thereinpurchasing Member Group or the Company) and will deliver such bills of sale, which shall be made in accordance with this Section 4.03)assignments and other agreements and instruments and will take all such other reasonable actions as the purchasing Member Group may request.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Agreement Regarding Ownership Interests (FLN Finance Inc), Ownership Interests Agreement (FLN Finance Inc)
Change of Control. (a) If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7 and subject to the terms of this Section 4.033.9(c), each Holder will have the right to require the Issuer shall make an offer to repurchase purchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest (including any Additional Interest), if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) to each Holder of any such Notes Offer electronically or by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, as provided for in Section 2.3, describing the transaction or transactions that constitute the Change of Control and including the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest interest, on and after the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (with the unpurchased portion of the Notes required to be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000);
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Depositary. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer and directing the Trustee to cancel such Notes.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated for any reason on or before the 60th day after such Change of Control. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest (including Additional Interest, if any) to but excluding the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 2 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described in Section 5.7, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (a “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”). Within 30 days following any Change of Control Repurchase Event, the Issuer will deliver notice of such Change of Control Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the procedures of the Depositary, with the following information (provided, that the Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws, rules or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer, and to the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Section 3.9, the Issuer shall comply with such laws and regulations and shall not be deemed to have breached its obligations under this Section 3.9):
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered and not validly withdrawn pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered or validly withdrawn will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least €100,000 or any integral multiple of €1,000 in excess of €100,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control;
(9) describing the transaction or transactions that constitute the Change of Control Repurchase Event; and
(710) certain the other procedures instructions, as determined by the Issuer, consistent with this Section 3.9, that a holder Holder must follow. The Paying Agent will promptly mail to each Holder so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes must follow to accept surrendered, if any; provided that each such new Note will be in a minimum principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, will be paid on the relevant interest payment date to withdraw the Person in whose name a Note is registered at the close of business on such acceptancerecord date.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawfulpermitted by law:
(1) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered the Notes so accepted for purchase together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.3, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If In the event that Holders of not less than 90% in of the aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in accept a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn held by such Holders, the Issuer or such third party Company will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such the purchase pursuant to the Change of Control Offer described abovein this Section 3.9, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% the Change of Control Payment plus, to the principal amount thereof plus extent not included in the Change of Control Payment, accrued and unpaid interest to on the notes that remain outstanding, to, but excluding not including, the date of redemption (subject to the delivery right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
(e) While the Notes are in global form and the Issuer makes an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer or by funds controlled or managed by any Affiliate Notes through the facilities of the IssuerDepositary, or any successor thereof, shall be deemed subject to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)its rules and regulations.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Avis Budget Group, Inc.), Indenture (Avis Budget Group, Inc.)
Change of Control. (a) If a Change of Control Triggering Event occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer Issuers shall make an offer to repurchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but not including, the date of purchase (repurchase date, subject to the right of Holders of record on the relevant record date Record Date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedInterest Payment Date. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control orTriggering Event, at the Issuer’s option, at any time prior to a Issuers shall send notice of such Change of Control following Offer by first class mail, with a copy to the public announcement thereof or if a definitive agreement is in place for the Change of ControlTrustee, the Issuer will send a notice (the “Change of Control Offer”) to each Holder to the address of any such Notes by mail Holder appearing in the Note Register with a copy to the Trustee or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 1016 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment;
(2) stating the repurchase date (price and the repurchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on, but not including, the Change of Control Payment Date unless Date;
(5) Holders electing to have any Notes repurchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Repurchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(46) describing Holders will be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuers to repurchase such Notes, provided that the transaction or transactions that constitute Paying Agent receives, not later than the close of business on the last day of the Change of Control;
(5) describing Control Offer period, a telegram, telex, facsimile transmission or letter setting forth the procedures determined by name of the IssuerHolder, consistent with this Indenturethe principal amount of Notes tendered for repurchase, and a statement that a Holder must follow in order such ▇▇▇▇▇▇ is withdrawing his tendered Notes and his election to have its such Notes repurchased;
(67) if such notice is mailed prior to the occurrence of a Change of ControlControl Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of ControlControl Triggering Event; and
(7) certain other procedures 8) that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Holders whose Notes are listed on an exchange, and the rules of the exchange so require, the Issuer being repurchased only in part will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all be issued new Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will which unpurchased portion must be equal to $150,000 in a principal amount that is at least $200,000 and or an integral multiples multiple of $1,000 in excess thereof.
(eb) This Section 4.03 will be applicable whether or not any other provisions While the Notes are in global form and the Issuers make an offer to repurchase all of this Indenture are applicablethe Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the repurchase of the Notes through the facilities of Depositary, Euroclear and Clearstream, subject to their rules and regulations.
(fc) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuers, or any other Person making a Change of Control Offer in lieu of the Issuers as described below, repurchase all of the Notes validly tendered and not withdrawn by such Holders, the Issuers shall have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such repurchase pursuant to Section 1016(a) hereof, to redeem all Notes that remain Outstanding following such repurchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, to, but not including, the Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
(d) The Issuer will Issuers shall not be required to make a Change of Control Offer upon following a Change of Control Triggering Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases repurchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) notice of redemption has been given (including pursuant to a satisfaction and discharge) pursuant to this Indenture as described under Section 1101, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of ControlControl Triggering Event, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(e) The Issuer will comply, to the extent applicable, Issuers shall comply with the requirements of Section 14(e) of under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under described in this Indenture by virtue thereof.
(f) On the Change of Control provisions of this Indenture Payment Date, the Issuers shall, to the extent permitted by virtue of the conflict.law,
(h1) If Holders of not less than 90% in aggregate principal amount of the outstanding accept for payment all Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly portions thereof properly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to redeem all the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating that remain outstanding following such purchase at Notes or portions thereof have been tendered to and repurchased by the Issuers.
(g) The Paying Agent shall promptly mail to each Holder the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail to each Holder a price new Note equal in cash equal principal amount to 101% any unpurchased portion of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for Notes surrendered, if any; provided that each such redemption. In determining whether the Holders of at least 90% of the aggregate new Note shall be in a principal amount of $150,000 or an integral multiple of $1,000 in excess thereof. The Issuers shall publicly announce the then outstanding Notes have validly tendered and not validly withdrawn Notes in a results of the Change of Control Offer, Notes owned by any Affiliate of Offer on or as soon as practicable after the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Payment Date.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes as described under SECTION 5.7, the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase repurchase; provided that (subject to 1) if the right of Holders of record repurchase date is on or after the relevant record date to receive interest due and on or before the relevant corresponding interest payment date), then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date; provided, however, that and (2) if the Issuer shall Company delivered a redemption notice but subsequently did not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the outstanding Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part the terms of this Indenture, then the Company shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to make a Change of Control Offer and otherwise comply with the terms of this SECTION 3.9. Within 30 days following the public announcement thereof or if a definitive agreement is in place for the any Change of Control, the Issuer Company will send deliver or cause to be delivered a notice (the “of such Change of Control Offer”) to each Holder of any such Notes by mail or otherwise , electronically in accordance with the applicable procedures set forth in this Indentureof DTC or by first-class mail, with a copy to the Trustee:
(1) stating , to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that a constitute the Change of Control has occurred or may occur and that such Holder has offering to repurchase the right to require Notes for the Issuer to purchase all or any part of such Holder’s Notes at a specified purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, on the date of purchase (subject to specified in the right of Holders of record on a record notice, which date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall will be no earlier than 10 30 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed delivered, pursuant to the procedures required by this Indenture and described in such notice, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below:
(1) that a Change of Control Offer is being made pursuant to this SECTION 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days after from the Change of Control) date such notice is delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Company default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures instructions, as determined by the Company, consistent with this SECTION 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-book entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 2,000 or an integral multiple of $1,000. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in excess thereofwhose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Company.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (gii) a notice of redemption of all outstanding Notes has been given pursuant to SECTION 5.7 hereof, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this SECTION 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, .
(d) Notwithstanding anything to the extent applicablecontrary in this Indenture, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with any tender offer for the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureNotes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the including a Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer such tender offer and the IssuerCompany, or any third party making a Change of Control Offer such tender offer in lieu of the Issuer in accordance with this Section 4.03Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Company or such third party will have the right, right upon not less than 10 nor more than 60 days’ prior Company notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described abovedate, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof plus price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest to interest, if any, thereon, to, but excluding not including, the date of such redemption.
(e) While the delivery Notes are in global form and the Company make an offer to purchase all of the notice for such redemption. In determining whether Notes pursuant to the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate a Holder may exercise its option to elect for the purchase of the Issuer Notes through the facilities of DTC, subject to its rules and regulations.
(f) To the extent that the provisions of any securities laws, rules or by funds controlled or managed by any Affiliate regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Issuer, or any successor thereof, Company will comply with the applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to by virtue thereof. The Company may rely on any no-action letters issued by the Issuer’s obligation to make an offer to repurchase SEC indicating that the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount staff of the NotesSEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
Appears in 2 contracts
Sources: Indenture (iHeartMedia, Inc.), Indenture (iHeartMedia, Inc.)
Change of Control. (a) If a Change of Control of CBI, HVL or DBR occurs, subject then the Class A Member in the case of CBI, the Class B Member in the case of HVL, or the Class C Member in the case of DBR (the “Affected Member”) shall promptly (and in no event later than ten Business Days after consummation of the Change of Control) notify the other Members, identifying in reasonable detail the Person or Persons who have assumed control of the Affected Member. The other Members will then have the right, by notice given to the terms Affected Member no later than forty-five (45) days after receipt of this Section 4.03notice of the Change of Control from the Affected Member (or, if no such notice is given, the date they actually discover the Change of Control has occurred) to purchase the entire Membership Interest held by the Affected Member, in either case at the fair market value thereof. If no notice of purchase or sale is given within the forty-five (45) day period specified above, no purchase or sale shall take place and the Affected Member shall continue as a Member of the Company with no modification to its rights or obligations. If both of the other Members choose to purchase the Membership Interest held by the Affected Member, each Holder of the other Members will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) purchase its pro rata share of such Holder’s Notes at a Membership Interest, based upon their respective Membership Units, provided that the other Members may agree between themselves (which agreement will be binding upon the Affected Member) that they will divide the purchase price in cash equal to 101% of the principal amount Affected Member’s Membership Interest among themselves on a non-pro rata basis or that the Company will purchase the Affected Member’s Membership Interest. If only one of the Notes, plus accrued and unpaid interest other Members chooses to purchase the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes Membership Interest held by any holder to below $200,000the Affected Member, such Member will purchase the entire Affected Member’s Membership Interest.
(b) Unless otherwise agreed among the Issuer has unconditionally exercised its right to redeem all Affected Member and the Notes other Members, any sale pursuant to this Section 3.07 or all conditions 10.5 shall be for cash, payable in full at the closing of the sale, and shall be made on an “as is, where is” basis without representations from any party other than customary representations as to such redemption have been satisfied or waivedtitle to the Membership Interests being Transferred and due authorization, no later than power and authority for the date that is 60 days after any Change Transfer. The closing of Control orthe Transfer shall take place at the offices of the Company, at a time specified by the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (purchasing Member which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 (i) ninety (90) days following delivery of the notice of purchase from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paidother Members, and that any Notes or part thereof not tendered will continue to accrue interest;
(4ii) describing ten (10) days following resolution of the circumstances and relevant facts regarding fair market value of the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Membership Interests being Transferred in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceSection 10.5(c).
(c) The Issuer shall cause fair market value of any Membership Interest to be published sold hereunder will be the notice described above through amount that would be distributed to the newswire service holder of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, such Membership Interest if the Change of Control shall have occurredCompany’s assets, the Issuer willsubject to its liabilities, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent were sold at an aggregate amount equal to the Change fair market value of Control Payment the Company as a going concern in respect of all Notes so tendered;
an arms-length sale between a willing buyer and seller (3) deliver or cause to be delivered “Going Concern Value”), the Company liquidated and the liquidation proceeds distributed to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer Members in accordance with Section 11.2. Unless it is determined by agreement among the Affected Member and the other Members, fair market value of a Membership Interest for purposes of this Section 4.03, purchases all of 10.5 will be determined by the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less following process: No later than 10 nor more than 60 days’ prior notice, given not more than 30 thirty (30) days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the after delivery of the notice for such redemption. In determining whether of purchase from the Holders of at least 90% other Members, the Affected Member, on the one hand, and the other Member or Members (by agreement between them), as the case may be, on the other hand, will each specify a Going Concern Value of the aggregate principal amount Company, including with their submission such supporting information as they may select, and each will submit its proposal to an arbitrator, who shall be experienced in the valuation of businesses similar to the Company’s business. The arbitrator shall conduct a hearing to receive additional information about the basis of and support for the two proposals. The arbitrator will then determine the Going Concern Value of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned Company by any Affiliate choosing one or the other of the Issuer two proposals; provided that the arbitrator shall not have the discretion or by funds controlled or managed by authority to choose any Affiliate other value. The fair market value of the Issuer, Membership Interest or any successor thereof, shall be deemed Interests to be outstanding sold will then be determined by the Company’s management based upon the Going Concern Value so established, by application of Section 11.2. If any Member disagrees with the value established by management and that disagreement cannot be resolved between or among the concerned Members, the determination of the fair market value of the Membership Interest or Interests to be sold based upon the established Going Concern Value will be resubmitted to the arbitrator. The timing and procedure before the arbitrator (including the requirement that the arbitrator choose the value of one or the other of the competing proposals) will be the same as that followed for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount original establishment of the NotesGoing Concern Value.
Appears in 2 contracts
Sources: Joint Venture Agreement (Huneeus Vintners LLC), Joint Venture Agreement (Constellation Brands, Inc.)
Change of Control. (a) If Upon a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes then outstanding Securities at a purchase price in cash equal to 101% of the principal amount of the Notesbalance thereof, plus accrued and unpaid interest interest, if any, to the date of purchase repurchase (subject to the right of the Holders of record on the relevant record date Record Date to receive interest due on the relevant interest payment daterelated Payment Date), in accordance with the terms contemplated in this Section 4.08; provided, however, that notwithstanding the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all occurrence of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send shall not be obligated to repurchase any Securities pursuant to this Section 4.08 in the event that it has exercised (i) its unconditional right to redeem such Securities in accordance with Article 3 or (ii) its legal defeasance option or covenant defeasance option in accordance with Article 8.
(b) Within 30 days following any Change of Control, except to the extent that the Issuer has exercised (x) its unconditional right to redeem the Securities by delivery of a notice of redemption in accordance with Article 3 or (y) its legal defeasance option or covenant defeasance option in accordance with Article 8, the Issuer shall provide a written notice (a “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the TrusteeTrustee stating:
(1i) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of repurchase such Holder’s Notes Securities at a purchase repurchase price in cash equal to 101% of the principal amount of such Notes balance thereof, plus accrued and unpaid interest tointerest, but not includingif any, to the date of purchase repurchase (subject to the right of the Holders of record on a record date the relevant Record Date to receive interest on the relevant interest payment date) (the “Change of Control Payment”related Payment Date);
(2ii) stating the circumstances and relevant facts and financial information regarding such Change of Control (provided, that the Issuer shall be deemed to have provided such information if it shall have been made available for free within the period specified above for delivery of such notice on the SEC’s ▇▇▇▇▇ system (or any successor system adopted by the SEC);
(iii) the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such written notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;provided, other than as may be required by law); and
(3iv) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures instructions determined by the Issuer, consistent with this IndentureSection 4.08, that a Holder must follow in order to have its Notes Securities repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer Holders electing to have a Security repurchased shall cause be required to be published surrender the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateSecurity, any similar agency). In addition, if any Notes are listed on with an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willappropriate form duly completed, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant Issuer at the address specified in the notice at least five Business Days prior to the Change of Control Offer;
(2) deposit with repurchase date. The Holders shall be entitled to withdraw their election if the Paying Agent an amount equal Issuer receives not later than two Business Days prior to the Change repurchase date a telegram, telex, facsimile transmission or letter setting forth the name of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating Holder, the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof Security that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted was delivered for purchase by the IssuerHolder and a statement that such Holder is withdrawing its election to have such Security repurchased. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to Holders whose Securities are repurchased only in part shall be transferred by book-entry) to each Holder of Definitive Registered Notes a issued new Definitive Registered Note Securities equal in principal amount to the unpurchased portion of the Notes Securities surrendered. If the Securities are Global Securities held by the Depository, then the applicable operational procedures of the Depository for tendering and withdrawing securities will apply.
(d) On the repurchase date, the Issuer will deposit with the Trustee or the Paying Agent an amount equal to 101% of the principal balance of the Securities to be repurchased, plus accrued and unpaid interest, if any; provided , to the date of repurchase in respect of the Securities or portions thereof that each have been delivered for repurchase in connection with such new Note will Change of Control Offer. On the repurchase date, all Securities repurchased by the Issuer under this Section 4.08 shall be delivered to the Trustee for cancellation in a principal amount that is at least $200,000 accordance with the terms of this Indenture, and, if deposited by the Issuer in accordance with the preceding sentence, the Trustee shall pay the purchase price plus accrued and integral multiples of $1,000 in excess thereofunpaid interest to the Holders entitled thereto.
(e) This Section 4.03 will A Change of Control Offer may be applicable whether or not any other provisions made in advance of this Indenture are applicablea Change of Control, and conditioned upon the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(f) The Notwithstanding the foregoing provisions of this Section 4.08, the Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture Section 4.08 applicable to a Change of Control Offer made by the Issuer and purchases all Notes Securities validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything Securities repurchased by the Issuer pursuant to the contrary herein, a Change of Control Offer may will have the status of Securities issued but not outstanding or will be made retired and canceled at the option of the Issuer. Securities purchased by a third party pursuant to Section 4.08(f) will have the status of Securities issued and outstanding.
(h) At the time the Issuer delivers Securities to the Trustee that are to be accepted for repurchase, the Issuer shall also deliver an Officers’ Certificate stating that such Securities are to be accepted by the Issuer pursuant to and in advance accordance with the terms of a Change of Controlthis Section 4.08 and confirming whether the Securities will be considered issued but not outstanding, conditional upon such Change of Control, if a definitive agreement is in place or include orders to cancel the repurchased Securities. A Security shall be deemed to have been accepted for the Change of Control repurchase at the time the Trustee, directly or through an agent, provides payment therefor to the surrendering Holder.
(i) Prior to providing written notice to the Holders of making of the any Change of Control Offer. , the Issuer shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent contained herein to the right of the Issuer to make such offer have been complied with.
(j) The Issuer will shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes Securities pursuant to this Section 4.034.08. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 4.08, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.08 by virtue of the conflictthereof.
(hk) If In the event that Holders of not less than 90% in of the aggregate principal amount of the outstanding Notes validly tender Securities accept and do not validly withdraw such Notes in their acceptance of a Change of Control Offer and the Issuer, Issuer or any a third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn Securities held by such Holders, the Issuer or such third party will have the right, upon on not less than 10 nor more than 60 days’ prior noticenotice to the Holders (with a copy to the Trustee), given and not more than 30 days following such the purchase pursuant to the such Change of Control Offer described aboveOffer, to redeem all Notes of the Securities that remain outstanding following such purchase at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offerpayment set forth in clause (b)(i) of this Section 4.08 plus, Notes owned by any Affiliate of to the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of extent not included in such Change of Control Offer. Any redemption pursuant payment, accrued and unpaid interest, if any, on the Securities that remain outstanding, to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)such later repurchase date.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to after the terms of this Section 4.03Issue Date, each Holder will shall have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101101.0% of the principal amount of such Notes thereof, plus accrued and unpaid interest tointerest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the purchase date), except to the extent the Issuer has previously elected to redeem all of the Notes pursuant to Section 5.1.
(b) Prior to or within 30 days following any Change of Control, except to the extent that the Issuer has exercised its right to redeem all of the Notes as described under Section 5.1, the Issuer shall deliver a notice (a “Change of Control Offer”) to each Holder, with a copy to the Trustee, or otherwise in accordance with the procedures of DTC, describing:
(i) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Holder has, or upon such occurrence will have, the right to require the Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase (subject to the right of Holders of record on a record date Record Date to receive interest on the relevant interest payment Interest Payment Date falling prior to or on the purchase date) (the “Change of Control Payment”);
(2ii) stating the repurchase transaction or transactions that constitute, or are expected to constitute, such Change of Control;
(iii) the purchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after delivered (unless delivered in advance of the occurrence of such Change of Control)) (the “Change of Control Payment Date”) and the record date);
(3iv) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(v) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vii) describing that Holders shall be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the expiration time of the Change of ControlControl Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5viii) describing the procedures determined by the Issuer, consistent with this Indenture, that if a Holder (other than a Holder of a Global Note) is tendering for purchase less than all of its Notes, the Issuer will issue new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (and the unpurchased portion of the Notes must follow be equal to $2,000 or an integral multiple of $1,000 in order to have its Notes repurchasedexcess thereof);
(6ix) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7x) certain the other procedures instructions determined by the Issuer, consistent with this Section 3.9, that a holder of Notes Holder must follow in order to accept a have its Notes purchased. While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes to be made through the facilities of the Depositary in accordance with the rules and regulations thereof.
(c) The Issuer Holders electing to have a Note purchased shall cause be required to be published surrender the Note, with an appropriate form duly completed, to the Paying Agent at the address specified in the notice described above through at least three Business Days prior to the newswire service Change of Bloomberg (or Control Payment Date. Holders shall be entitled to withdraw their election if Bloomberg does the Paying Agent receives not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and later than prior to the rules expiration time of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing its tendered Note and its election to have such Note purchased.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, all Notes purchased by the Issuer will, under this Section 3.9 shall be delivered by the Issuer to the extent lawful:
(1) accept Trustee for payment all Notes or portion thereof properly tendered pursuant to cancellation, and the Change of Control Offer;
(2) deposit with Issuer shall pay through the Paying Agent an amount equal to the purchase price, plus accrued and unpaid interest, if any, to, but not including the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be deliveredDate, to the Paying Agent the applicable Holders entitled thereto. With respect to any Note purchased in part (other than a Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issuedNote), the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes Issuer shall issue a new Definitive Registered Note equal in a principal amount equal at maturity to the unpurchased portion of the Notes surrendered, if any; provided that each such new original Note will be in a principal amount that is at least $200,000 and integral multiples the name of $1,000 in excess thereofthe Holder upon cancellation of the original Note.
(e) This Section 4.03 will be applicable whether or not any other Notwithstanding the provisions of this Indenture are applicable.
(f) The Section 3.9, the Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes an offer to repurchase the Change Notes at a price at or above 101.0% of Control Offer the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date of purchase, in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such offer. Additionally, the Issuer shall not be required to make a Change of Control Offer if the Issuer has previously issued a notice of a full redemption pursuant to the provisions of Section 5.4, which may be subject to the consummation of the Change of Control.
(f) Prior to any Change of Control Offer, the Issuer shall deliver to the Trustee an Officer’s Certificate stating that all conditions precedent contained herein to the right of the Issuer to make such offer have been complied with.
(g) Notwithstanding anything to the contrary herein, a A Change of Control Offer may be made in advance of a Change of Control, conditional and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(h) The Issuer will shall comply, to the extent applicable, with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.033.9. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 3.9, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under this Section 3.9 by virtue of such compliance.
(i) On the Change of Control provisions of this Indenture Payment Date, the Issuer shall, to the extent permitted by virtue of the conflict.law,
(hi) If Holders of not less than 90% in aggregate principal amount of the outstanding accept for payment all Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of issued by the Issuer in accordance with this Section 4.03, purchases all of the Notes or portions thereof validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash Offer;
(ii) deposit with the Paying Agent an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control OfferPayment in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes owned so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (CommScope Holding Company, Inc.), Indenture (CommScope Holding Company, Inc.)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, and subject to the terms provisions and conditions of this Section 4.032.2(k), each Holder the Corporation will have the right be obligated to require the Issuer offer to repurchase purchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) Debentures then outstanding. The terms and conditions of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures obligation are set forth in this Indenture, with a copy to the Trusteebelow:
(1i) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 Within 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to following the occurrence of a Change of Control, the Corporation will deliver to the Debenture Trustee a notice in writing stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept there has been a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published and specifying the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed date on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under which such Change of Control Offer.
(g) Notwithstanding anything occurred and the circumstances or events giving rise to the contrary herein, a such Change of Control Offer may be made together with an offer in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for writing (the Change of Control at the time of making of the Change of Control “Debenture Offer. The Issuer will comply, ”) to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases purchase all of the Notes validly tendered and not validly withdrawn by such Holders, Debentures then outstanding from the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase holders thereof at a price in cash per Debenture equal to 101% of the principal amount thereof plus together with accrued and unpaid interest thereon up to but excluding the date Change of Control Purchase Date (as defined below) (the “Offer Price”). The Debenture Trustee will promptly, but no later than three Business Days thereafter, deliver, by prepaid mail a notice of the delivery Change of Control (in a form prepared by the Corporation) together with the Debenture Offer to the holders of all Debentures then outstanding, at their addresses appearing in the registers of holders of Debentures maintained by the Debenture Trustee.
(ii) The Debenture Offer will specify the date (the “Expiry Date”) and time (the “Expiry Time”) on which the Debenture Offer expires which date and time will not, unless otherwise required by Applicable Securities Legislation, be earlier than the close of business on the 35th day and not later than the close of business on the 60th day following the date on which such Debenture Offer is delivered or mailed by or on behalf of the Debenture Trustee as provided above.
(iii) The Debenture Offer will specify that the Debenture Offer may be accepted by the holders of Debentures by tendering the Debentures so held by them to the Debenture Trustee at its principal offices in Toronto, Ontario at or before the Expiry Time together with an acceptance notice (the “Acceptance Notice”) in form and substance acceptable to the Debenture Trustee.
(iv) The Debenture Offer will state that holders of Debentures may accept the Debenture Offer in respect of all or a portion (in a minimum amount of $1,000 principal amount and multiples thereof) of their Debentures.
(v) The Debenture Offer will specify a date (the “Change of Control Purchase Date”) no later than the third Business Day following the Expiry Date on which the Corporation will take up and pay for all Debentures duly tendered in acceptance of the Debenture Offer.
(vi) The Corporation will, on or before 10:00 a.m. (Montréal time), on the Business Day immediately prior to the Change of Control Purchase Date pay to the Debenture Trustee by wire transfer or such redemptionother means as may be acceptable to the Debenture Trustee, an amount of money sufficient to pay the aggregate Offer Price in respect of all Debentures duly tendered to the Debenture Offer (less applicable Withholding Taxes, if any). In determining whether The Debenture Trustee, on behalf of the Holders Corporation, will pay the Offer Price to the holders of at least Debentures in the respective amounts to which they are entitled in accordance with the Debenture Offer as aforesaid.
(vii) If 90% or more of the aggregate principal amount of Debentures issued under the then Indenture outstanding Notes have validly tendered and not validly withdrawn Notes in a on the date the Corporation provides notice of the Change of Control have been tendered to the Corporation pursuant to the Debenture Offer, Notes owned the Corporation will have the right (the “90% Redemption Right”), but not the obligation, upon written notice (the “90% Redemption Right Notice”) provided to the Debenture Trustee within 10 days following the Expiry Date, to elect to redeem all the Debentures remaining outstanding at the Offer Price and on the other terms and conditions provided herein. Upon receipt of such notice by any Affiliate the Debenture Trustee, the Debenture Trustee will promptly provide written notice (in a form prepared by the Corporation) to each holder of outstanding Debentures (other than those that have accepted the Debenture Offer) that:
(A) the Corporation has exercised the 90% Redemption Right and is purchasing all outstanding Debentures effective as at the Change of Control Purchase Date at the Offer Price;
(B) such holder will surrender its Debentures to the Debenture Trustee within 30 days after the sending of such notice; and
(C) the rights of such holder under the terms of the Issuer or by funds controlled or managed by any Affiliate Debentures and this Indenture will cease to be effective as of the IssuerChange of Control Purchase Date provided the Corporation has, on or before the date on which the Corporation delivers the 90% Redemption Notice to the Debenture Trustee, paid the aggregate Offer Price to, or any successor thereofto the order of, shall the Debenture Trustee and thereafter such holder’s Debentures will not be deemed considered to be outstanding for the purpose and such holder will not have any rights hereunder except to receive such Offer Price to which such holder is entitled upon surrender and delivery of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made holder’s Debentures in accordance with Section 3.03 the Indenture.
(viii) The Corporation will, on or before 10:00 a.m. (Montréal time), on the Business Day immediately prior to the date on which the Corporation delivers the 90% Redemption Right Notice, pay to the Debenture Trustee by wire transfer or such other than means as may be acceptable to the time periods specified thereinDebenture Trustee, an amount of money sufficient to pay the aggregate Offer Price in respect of all Debentures to be redeemed pursuant to the 90% Redemption Right (less applicable Withholding Taxes, if any). The Debenture Trustee, on behalf of the Corporation, will pay the Offer Price to the holders of Debentures in the respective amounts to which shall be made they are entitled in accordance with this Section 4.03)the exercise of the 90% Redemption Right as aforesaid upon surrender and delivery of such holders’ Debentures.
(iix) The provisions Debentures in respect of which the Corporation has made payment to the Debenture Trustee in accordance with the terms of this Indenture relating Section 2.2(k) (or the portion thereof tendered in acceptance of the Debenture Offer) will thereafter no longer be considered to be outstanding under this Indenture. The Corporation will also deposit with the Debenture Trustee a sum of money sufficient to pay any charges or expenses which may be incurred by the Debenture Trustee in connection with the Debenture Offer and the exercise of the 90% Redemption Right if applicable. All Debentures in respect of which payment of the Offer Price has been so made will be cancelled by the Debenture Trustee.
(x) In the event that only a portion of the principal amount of a Debenture is tendered by a holder thereof in acceptance of the Debenture Offer, the Corporation shall, as applicable, execute and deliver to the Issuer’s obligation Debenture Trustee and the Debenture Trustee shall certify and deliver to make an offer the holder, as applicable, without charge to repurchase such holder, a certificate representing the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the NotesDebenture not so tendered in acceptance of the Debenture Offer, or in the case of an uncertificated Debenture, update the register in accordance with its Internal Procedures.
Appears in 2 contracts
Sources: Trust Indenture (IntelGenx Technologies Corp.), Trust Indenture (IntelGenx Technologies Corp.)
Change of Control. (a) If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require unless the Issuer has previously or substantially concurrently therewith delivered a redemption notice with respect to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notesoutstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice make an offer (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s the Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose names the Notes are registered at the close of business on such record date will receive the interest due on the repurchase date. Within 30 days following any Change of Control, the Issuer will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entrybook‑entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by them or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer Company will not be required to make a Change of Control Offer upon following a Change of Control if (x) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control OfferOffer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(gd) Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is .
(e) [Reserved]
(f) While the Notes are in place for global form and the Change Issuer makes an offer to purchase all of Control at the time of making of Notes pursuant to the Change of Control Offer. , a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictcompliance therewith.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp)
Change of Control. (a) If Employee's employment with Employer (as an employee) shall cease for any reason, including Employee's voluntary termination for "good reason" (as defined in paragraph 6(c) below), but not including Employee's termination for "cause" (as described in paragraph 3(d)) or Employee's voluntary termination without "good reason," within 2 years following a "Change of Control" that occurs during the Period of Employment, Employer shall:
(i) Retain the services of Employee, on an independent contractor basis, as a consultant to Employer for a period of no less than 36 months at an annual consulting fee rate equal to the total of Employee's Base Salary in effect at the time of Employee's termination plus an amount equal to the Management Incentive paid to the Employee in the year prior to the "Change of Control";
(ii) Provide Employee with fringe benefits, or the cash equivalent of such benefits, identical to those described in paragraph 4(a) for the period during which Employee is retained as a consultant pursuant to (i) above. To the extent the benefits provided to Employee in this paragraph 6(a)(ii) are deemed taxable benefits, Employer shall reimburse Employee for taxes owed by Employee on the benefits and tax reimbursement; and
(iii) Treat as immediately exercisable all unexpired stock options issued by Employer and held by Employee that are not otherwise exercisable or that have not been exercised (so as to permit Employee to purchase the balance of CBSI Stock not yet purchased pursuant to said options until the end of the full exercise period provided in the original grant of the option right, determined without regard to Employee's termination of employment) and permit Employee to dispose of any restricted stock granted to Employee.
(iv) Subject to Employer's right to make the single lump sum payment described in paragraph 6(a)(v) below, if any portion of the amounts paid to, or value received by, Employee following a "Change of Control" (whether paid or received pursuant to this paragraph 6 or otherwise) constitutes an "excess parachute payment" within the meaning of Internal Revenue Code Section 280G, then the parties shall negotiate a restructuring of payment dates and/or methods (but not payment amounts) to minimize or eliminate the application of Internal Revenue Code Section 280G, with any restructured payments being made to Employee as soon as practicable. If an agreement to restructure payments cannot be reached within 60 days of the date the first payment is due under this paragraph 6, then payments shall be made without restructuring. Subject to paragraph 6(a)(v), Employee shall be responsible for all taxes that are payable by Employee as a result of Employee's receipt of an "excess parachute payment." Notwithstanding the foregoing, Employee shall have the option of receiving a portion of the amounts otherwise required to be paid to, or the value otherwise required to be received by, Employee following a "Change of Control" (whether paid or received pursuant to this paragraph 6 or otherwise), as determined by Employee, so that aggregate present value of such portion, as determined under Internal Revenue Code 280G, of the amounts otherwise required to be paid to, or the value otherwise required to be received by, Employee is equal to 2.99 of Employee's "base amount" of compensation within the meaning of Internal Revenue Code Section 280G.
(v) Notwithstanding the foregoing of this paragraph 6(a), the Board of Directors of Employer may elect, in its sole discretion, to pay all benefits due Employee pursuant to this paragraph 6 in a single lump sum payment within 90 days following a Change of Control occurs, subject and Employee's termination of employment with Employer. In the event a single lump sum payment is made pursuant to the terms of this Section 4.03foregoing sentence, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and increased to the extent necessary to hold Employee harmless from all income and excise tax liability attributable to such single lump sum payment, including, but not limited to, all taxes that it has unconditionally exercised its right are payable by Employee as a result of Employee's receipt of an "excess parachute payment" and as a result of any payment made to redeem all of the Notes Employee pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000this sentence.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedFor purposes of this paragraph 6, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the "Change of Control, the Issuer will send " shall be deemed to have occurred if:
(i) any "person," including a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise "group" as determined in accordance with the procedures set forth in this IndentureSection 13(d)(3) of the Securities Exchange Act of 1934 ("Exchange Act"), with a copy to is or becomes the Trustee:beneficial owner, directly or indirectly, of securities of Employer representing 30% or more of the combined voting power of Employer's then outstanding securities;
(1ii) stating that as a Change result of, or in connection with, any tender offer or exchange offer, merger or other business combination (a "Transaction"), the persons who were directors of Control has occurred or may occur and that such Holder has Employer before the right Transaction shall cease to require constitute a majority of the Issuer to purchase all Board of Directors of Employer or any part successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of such Holder’s Notes at a purchase price in cash equal to 101the merger or consolidation less than 70% of the principal amount outstanding voting securities of such Notes plus accrued and unpaid interest tothe surviving or resulting corporation shall then be owned in the aggregate by the former stockholders of Employer, but not includingother than (A) affiliates within the meaning of the Exchange Act, the date of purchase or (subject B) any party to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)merger or consolidation;
(2iv) stating a tender offer or exchange offer is made and consummated for the repurchase date (which shall be no earlier than 10 days from ownership of securities of Employer representing 30% or more of the date such notice is mailed nor later than the later combined voting power of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;Employer's then outstanding voting securities; or
(3v) stating that any Note accepted for payment pursuant Employer transfers substantially all of its assets to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment another corporation which is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined controlled by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceEmployer.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions For purposes of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the mannerparagraph 6, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made "good reason" shall mean action taken by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent Employer that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.results in:
Appears in 2 contracts
Sources: Employment Agreement (Community Bank System Inc), Employment Agreement (Grange National Banc Corp)
Change of Control. (a) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will shall have the right to require that the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of the Notes, purchase plus accrued and unpaid interest interest, if any, to (but excluding) the date of purchase (subject to the right of Holders of record on the relevant record date Record Date to receive interest due on the relevant interest payment dateInterest Payment Date); provided, however, that except to the extent the Issuer shall not be obliged has previously or concurrently elected to repurchase redeem Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000Article III.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will shall mail (or with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, send electronically) a notice to each Holder with a copy to the Trustee (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trusteestating:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of such Notes purchase, plus accrued and unpaid interest tointerest, if any, to (but not including, excluding) the date of purchase (subject to the right of Holders of record on a record date the relevant Record Date to receive interest on the relevant interest payment date) (the “Change of Control Payment”Interest Payment Date);
(2) stating the repurchase circumstances and relevant facts regarding such Change of Control;
(3) the purchase date (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;sent); and
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures instructions, as determined by the Issuer, consistent with this IndentureSection 4.08, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptancepurchased.
(c) The Issuer shall cause to be published Notwithstanding the notice described above through the newswire service provisions of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so requirethis Section 4.08, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gd) Notwithstanding anything to the contrary herein, a A Change of Control Offer may be made in advance of a Change of Control, conditional and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(he) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03as described above, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will shall have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to to, but excluding excluding, the date of redemption.
(f) Notes repurchased by the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in Issuer pursuant to a Change of Control Offer, Offer shall have the status of Notes owned by any Affiliate of issued but not outstanding or will be retired and canceled at the Issuer or by funds controlled or managed by any Affiliate option of the Issuer. Notes purchased by a third party pursuant to this Section 4.08 shall have the status of Notes issued and outstanding.
(g) At the time the Issuer delivers Notes to the Trustee which are to be accepted for purchase, or any successor thereof, the Issuer shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Issuer pursuant to and in accordance with the terms of this Section 4.08. A Note shall be deemed to be outstanding have been accepted for purchase at the purpose time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(h) The Issuer shall comply, to the extent applicable, with the requirements of such Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes as a result of a Change of Control OfferControl. Any redemption pursuant to To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.03 4.08, the Issuer shall comply with the applicable securities laws and regulations and shall not be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with deemed to have breached its obligations under this Section 4.03)4.08 by virtue of its compliance with such securities laws or regulations.
(i) The provisions of in this Indenture relating relative to the Issuer’s obligation to make an offer to repurchase the Notes issued thereunder as a result of a Change of Control may be waived or modified with the written consent of holders the Holders of a majority in outstanding aggregate principal amount of the Notes.
Appears in 2 contracts
Sources: Indenture (Amn Healthcare Services Inc), Indenture (Amn Healthcare Services Inc)
Change of Control. (a) If a Change of Control occursoccurs while the Employee is employed by the Subsidiary during the term of this Agreement, or during any extension thereof, and:
(a) the Employee's employment is terminated involuntarily, or voluntarily by the Employee based on (i) material changes in the nature or scope of the Employee's duties or employment, (ii) a reduction in compensation of the Employee made without the Employee's consent, (iii) a relocation of the Subsidiary's executive offices outside the Atlanta, Georgia Metropolitan Area or farther than 35 miles from the present location of the executive offices, or (iv) a good faith determination made by the Employee, upon consultation with the Board of Directors of the Subsidiary, that it is necessary or appropriate for the Employee to relocate from the Atlanta, Georgia Metropolitan Area to enable Employee to perform his duties hereunder, the Employee may, in his sole discretion, give written notice within thirty (30) days after the date of termination of employment to the Secretary or Assistant Secretary of the Subsidiary that he is exercising his rights hereunder and requests payment of the amounts provided for under this Section 12; or
(b) the Employee gives written notice of his termination of employment for any reason concurrently with the time a Change of Control occurs or any time within thirty (30) days after the date the Change of Control becomes effective to the Secretary or Assistant Secretary of the Subsidiary, he may exercise his rights hereunder and request payment of the amounts provided for under this Section 12 (the notice provided pursuant to Subsection 12(a) or Subsection 12(b) is referred to as the "Notice of Exercise"). If the Employee gives a Notice of Exercise to receive the payments provided for hereunder, the Subsidiary shall pay to or for the benefit of the Employee, immediately upon the Subsidiary's receipt of the Notice of Exercise, a single cash payment for damages suffered by the Employee by reason of the Change in Control (the "Executive Payment") in an amount equal to 2.99 times the aggregated of Employee's annual base salary, bonuses and other benefits owing to Employee, subject to the terms provisions of this Section 4.03Sections 21, each Holder will have the right 22 and 23. The Executive Payment shall be in addition to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and offset or reduced by (i) any other amounts that have been earned or accrued or that have otherwise become payable or will become payable to the extent that it has unconditionally exercised its right to redeem all Employee or his beneficiaries, but have not been paid by the Subsidiary at the time the Employee gives the Notice of the Notes pursuant to Section 3.07 Exercise including, without limitation, salary, bonuses, severance pay, consulting fees, disability benefits, termination benefits, retirement benefits, life and health insurance benefits or all conditions to such redemption have been satisfied any other compensation or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date benefit payment that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder part of any such Notes by mail previous, current or otherwise in accordance with the procedures set forth in this Indenturefuture contract, with a copy plan or agreement, written or oral, and (ii) any indemnification payments that may have accrued but not paid or that may thereafter become payable to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment Employee pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules provisions of the exchange so requireSubsidiary's Articles of Incorporation, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment DateBylaws or similar policies, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes plans or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture agreements relating to the Issuer’s obligation indemnification of Employee under certain circumstances. The Executive Payment shall not be reduced by any present value calculations. In the event the Employee dies after giving the Notice of Exercise but prior to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount receipt of the NotesExecutive Payment, then the Employee's estate or legal representative shall be entitled to receive the Executive Payment.
Appears in 2 contracts
Sources: Employment Agreement (Sed International Holdings Inc), Employment Agreement (Sed International Holdings Inc)
Change of Control. (a) If a Change of Control occursoccurs with respect to CBI, subject HVL or DBR, the Class A Member (upon a Change of Control with respect to CBI), the Class B Member (upon a Change of Control with respect to HVL) or the Class C Member (upon a Change of Control with respect to DBR) (as applicable, the “Affected Member”) shall promptly (and in no event later than ten Business Days after consummation of the Change of Control) notify the other Members, identifying in reasonable detail the Person or Persons who have assumed control with respect to CBI, HVL or DBR, as the case may be. The other Members will then have the right, by notice given to the terms Affected Member no later than forty-five (45) days after receipt of this Section 4.03notice of the Change of Control from the Affected Member (or, if no such notice is given, the date they actually discover the Change of Control has occurred) to either sell their Membership Interests to the Affected Member or purchase the entire Membership Interest held by the Affected Member, in either case at the fair market value thereof. The decision to purchase or sell must be made jointly by the other Members. In the absence of agreement, or if no notice of purchase or sale is given within the forty-five (45) day period specified above, no purchase or sale shall take place and the Affected Member shall continue as a Member of the Company with no modification to its rights or obligations. If the other Members choose to purchase the Membership Interest held by the Affected Member, each Holder of the other Members will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) purchase its pro rata share of such Holder’s Notes at a Membership Interest, based upon their respected Membership Units, provided that the other Members may agree between themselves (which agreement will be binding upon the Affected Member) that one of them will purchase price in cash equal to 101% the Membership Interests of the principal amount other two Members, that they will divide the purchase of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record Affected Member’s Membership Interest among themselves on the relevant record date to receive interest due on the relevant interest payment date); provided, however, a non-pro rata basis or that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in Company will purchase the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000Affected Member’s Membership Interest.
(b) Unless otherwise agreed among the Issuer has unconditionally exercised its right to redeem all Affected Member and the Notes other Members, any sale pursuant to this Section 3.07 or all conditions 11.6 shall be for cash, payable in full at the closing of the purchase and sale, and shall be made on an “as is, where is” basis without representations from any party other than customary representations as to such redemption have been satisfied or waivedtitle to the Membership Interests being Transferred and due authorization, no later than power and authority for the date that is 60 days after any Change Transfer. The closing of Control orthe transfer shall take place at the offices of the Company, at a time specified by the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (purchasing Member which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 (i) ninety (90) days following delivery of the notice of purchase or sale from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paidother Members, and that any Notes or part thereof not tendered will continue to accrue interest;
(4ii) describing ten (10) days following resolution of the circumstances and relevant facts regarding fair market value of the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent Membership Interests being Transferred in accordance with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptanceSection 11.6(c).
(c) The Issuer shall cause fair market value of any Membership Interest to be published sold hereunder will be the amount that would be distributed to the holder of such Membership Interest if the Company’s assets, subject to its liabilities, were sold at an aggregate amount equal to the fair market value of the Company as a going concern in an arms-length sale between a willing buyer and seller (“Going Concern Value”), the Company liquidated and the liquidation proceeds distributed to the Members in accordance with Section 13.2. Unless it is determined by agreement among the Affected Member and the other Members, fair market value of a Membership Interest for purposes of this Section 11.6 will be determined by the following process: No later than thirty (30) days after delivery of the notice described above through of purchase or sale from the newswire service of Bloomberg (or if Bloomberg does not then operateother Members, any similar agency). In additionthe Affected Member, if any Notes are listed on an exchangethe one hand, and the rules other Members (by agreement between them), on the other hand, will each specify a Going Concern Value of the exchange Company, including with their submission such supporting information as they may select, and each will submit its proposal to an arbitrator, who shall be experienced in the valuation of businesses similar to the Company’s business. The arbitrator shall conduct a hearing to receive additional information about the basis of and support for the two proposals. The arbitrator will then determine the Going Concern Value of the Company by choosing one or the other of the two proposals; provided that the arbitrator shall not have the discretion or authority to choose any other value. The fair market value of the Membership Interest or Interests to be sold will then be determined by the Company’s management based upon the Going Concern Value so requireestablished, by application of Section 13.2. If any Member disagrees with the value established by management and that disagreement cannot be resolved between or among the concerned Members, the Issuer will notify the exchange determination of the results fair market value of any Change the Membership Interest or Interests to be sold based upon the established Going Concern Value will be resubmitted to the arbitrator. The timing and procedure before the arbitrator (including the requirement that the arbitrator choose the value of Control Offerone or the other of the competing proposals) will be the same as that followed for the original establishment of the Going Concern Value.
(d) On the Change For purposes of Control Payment Date, if the Change of Control shall have occurredthis Section 11.6, the Issuer will“other Members” shall include only Class A Members, to Class B Members and Class C Members except as otherwise provided in the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions terms and conditions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereofClass D Membership Interests.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 2 contracts
Sources: Joint Venture Agreement (Huneeus Vintners LLC), Joint Venture Agreement (Constellation Brands, Inc.)
Change of Control. (a) If a Change of Control occursoccurs after the Issue Date, subject unless the Issuer has, prior to or concurrently with the time the Issuer is required to make a Change of Control Offer (as defined below), delivered electronically or mailed a redemption notice that is or has become unconditional with respect to all the Outstanding Notes pursuant to Article 3 or Section 8.06, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but excluding the date of purchase (purchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedInterest Payment Date. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 30 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will shall send a notice (the “of such Change of Control Offer”) Offer electronically or by first class mail or overnight mail, with a copy to the Trustee sent in the same manner, to each Holder of any Notes to the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof the Depositary, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 4.11 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) or sent (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the paying agent receives, not later than the expiration time of the Change of Control Offer, electronic transmission (in PDF), facsimile transmission or letter (sent in the same manner provided in the Change of Control Offer) setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is purchasing less than all of the Notes, the Holders of the remaining Notes shall be issued new Notes and such new Notes shall be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of ControlControl and, if applicable, shall state that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time as the Change of Control shall occur or that such repurchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that such Change of Control shall not occur by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and
(79) certain the other procedures instructions, as determined by the Issuer, consistent with this Section 4.11, that a holder Holder must follow.
(b) While the Notes are in the form of Global Notes must follow and the Issuer makes an offer to accept a purchase all of the Notes pursuant to the Change of Control Offer or Offer, a Holder shall exercise its option to withdraw such acceptanceelect for the purchase of the Notes through the facilities of the Depositary subject to its rules and regulations.
(c) The Issuer shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent such laws or regulations are applicable in connection with the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules repurchase of the exchange so require, the Issuer will notify the exchange of the results of any Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations in this Indenture by virtue thereof.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent paying agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order to reflect thereon the portion of such so accepted together with an Officer’s Certificate stating that all Notes or portions thereof that have been tendered to and purchased by the Issuer; and.
(5e) in In the case event that the Issuer makes a Change of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issuedControl Payment, the Paying Agent, at the Issuer’s expense, will paying agent shall promptly mail or pay by wire transfer to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will shall promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail a new Note (or cause to be transferred by book-book entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will shall be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether . The Issuer shall publicly announce the results of the Change of Control Offer on or not any other provisions as soon as practicable after the Change of this Indenture are applicableControl Payment Date.
(f) The Issuer will shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in of this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all such Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the such Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hg) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03as described above, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will shall have the right, upon not less than 10 days nor more than 60 days’ prior notice, provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to 101% the applicable Change of Control Payment in respect of the principal amount thereof Second Change of Control Payment Date plus accrued and unpaid interest to interest, if any, to, but excluding excluding, the date of purchase, subject to the delivery right of the notice for such redemption. In determining whether the Holders of at least 90% of record on the aggregate principal amount of relevant Regular Record Date to receive interest due on the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)relevant Interest Payment Date.
(ih) The provisions of under this Indenture relating related to the Issuer’s obligation obligations to make an offer to repurchase the Notes as a result of a Change of Control and the definition of “Change of Control” may be waived or modified with the written consent of holders the Holders of a majority in outstanding principal amount of the NotesNotes outstanding.
Appears in 2 contracts
Sources: Indenture (Gannett Co., Inc.), Indenture (Arconic Corp)
Change of Control. Upon (ai) If the effective date of a written notice sent to Executive by eRCG stating that a "Change of Control occurs, subject Control" (hereinafter defined) has occurred or will occur and Executive's employment will be terminated in connection therewith (despite eRCG's best efforts to the terms of this contrary as set forth in Section 4.035.8 hereof), each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not which notice must be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, given no later than the date that is 60 sixty (60) days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the such Change of Control, the Issuer will send a notice (the “Change of Control Offer”ii) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase termination if Executive is terminated without cause or resigns with cause within eighteen (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date18) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence months of a Change of Control, stating that or (iii) the Change date of Control Offer is conditional on the occurrence of such Change of Control; and
termination if Executive voluntarily resigns within ninety (790) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of days following a Change of Control, conditional upon such . A "Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not " shall be deemed to have breached occurred if (A) as a result of any merger, consolidation, sale, assignment, transfer or other transaction, any person, other than those persons who are shareholders of eRCG or its obligations affiliates (within the meaning of Rule 501 of the Securities Act of 1933) on the date hereof, becomes the "beneficial owner" (as defined in Rule 13d-3 and 13d-5 under the Change Securities Exchange Act of Control provisions 1934, as amended) of this Indenture by virtue of the conflict.
(h) If Holders of not less more than 9050% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change voting securities of Control Offer and eRCG or the Issuer, surviving entity or any third party making a Change of Control Offer in lieu becomes entitled to elect more than one-half (1/2) of the Issuer in accordance with this Section 4.03Board or other governing body of eRCG or the surviving entity; (B) a tender offer shall be made and consummated of the ownership of 50% or more of the outstanding voting securities of eRCG; or (C) eRCG sells, purchases assigns or otherwise transfers all or substantially all of the Notes validly tendered and not validly withdrawn by such Holders, assets of the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveeRCG, to redeem all Notes that remain outstanding following persons other than those persons who are shareholders of eRCG, its subsidiaries or affiliates; provided, however, in no event shall a financing transaction (such purchase at a price in cash equal to 101% as additional rounds of venture capital), which is approved by the principal amount thereof plus accrued Board and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned entered into by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall eRCG be deemed to be outstanding for the purpose of such a "Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Control".
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Change of Control. (ai) If Upon the occurrence of a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will Preferred Member shall have the right to require the Issuer Company to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes Member's shares of Preferred Interests (a "Change of Control Offer") at a purchase an offer price in cash equal to 101% of the principal amount of the Notes, aggregate Liquidation Preference thereof plus (i) accrued and unpaid interest dividends, if any, thereon to the date of purchase and (subject ii) any Additional Costs (together, the "Change of Control Payment").
(ii) The Change of Control Offer shall include all instructions and materials to enable Members to tender their shares of Preferred Interests.
(iii) The Company shall comply with the right requirements of Holders of record on Rule 14e-1 under the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event Exchange Act and any other securities laws and regulations thereunder to the extent that it has unconditionally exercised its right to redeem all such laws and regulations are applicable in connection with the repurchase of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity shares of the Notes held by any holder to below $200,000Preferred Interests as a result of a Change of Control.
(biv) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send Company shall mail or deliver by facsimile transmission a notice (the “"Notice of Change of Control Offer”Control") to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trusteestating:
(1A) stating that a the Change of Control has occurred or may occur Offer is being made pursuant to this Section 9.4(c) and that such Holder has the right to require the Issuer to purchase all or any part shares of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Preferred Interests tendered will be accepted for payment;
(2B) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “"Change of Control Payment Date”) and the record date");
(3C) stating that any Note share of Preferred Interests not tendered will continue to accrue dividends;
(D) that, unless the Company fails to pay the Change of Control Payment, all shares of Preferred Interests accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest dividends after the Change of Control Payment Date unless Date;
(E) that Members electing to have any shares of Preferred Interests purchased pursuant to a Change of Control Offer will be required to surrender the shares of Preferred Interests, with the form entitled "Option of Holder to Elect Purchase" which shall be included with the Notice of Change of Control completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4F) describing that Members will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the name of shares of Preferred Interests delivered for purchase, and a statement that Member is withdrawing his election to have such shares purchased; and
(G) the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of (including, but not limited to, information with respect to pro forma historical financial information after giving effect to such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer and information regarding the Person or to withdraw such acceptancePersons acquiring control).
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(dv) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willCompany shall, to the extent lawful:
: (1i) accept for payment all Notes or portion thereof shares of Preferred Interests properly tendered pursuant to the Change of Control Offer;
, (2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes shares of Preferred Interests so tendered;
tendered and (3iii) deliver or cause to be delivered to the Trustee Paying Agent shares of Preferred Interests so accepted together with an Officer’s Officers' Certificate stating the aggregate principal amount Liquidation Preference of Notes the shares of Preferred Interests or portions of the Notes thereof being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Company. The Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will shall promptly mail to each Holder holder of Definitive Registered Notes Preferred Interests so tendered the Change of Control Payment for such Notes, Preferred Interests and the Trustee Paying Agent will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes Member a new Definitive Registered Note certificate representing the shares of Preferred Interests equal in principal Liquidation Preference amount to the any unpurchased portion of the Notes shares of Preferred Interests surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples . The Company shall announce the results of $1,000 in excess thereofthe Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(evi) This Section 4.03 will be applicable whether or not any other Prior to complying with the provisions of this Indenture are applicableSection 9.4(c), but in any event within 90 days following a Change of Control, the Company shall either repay all outstanding Indebtedness or obtain the requisite consents, if any, under all agreements governing outstanding Indebtedness, in each case to the extent required to permit the repurchase of Preferred Interests required by this Section 9.4(c).
(fvii) The Issuer will Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture Section 9.4(c) applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes shares of Preferred Interests validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Enserch Exploration Inc /Tx/)
Change of Control. (a) If a Change of Control occurs, subject unless, prior to, or concurrently with, the time the Issuer is required to make a Change of Control Offer (as defined below), the Issuer has previously or concurrently mailed or delivered, or otherwise sent through electronic transmission, a redemption notice with respect to all the Outstanding Notes as described under Section 4.01 or Section 11.06, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof (or such higher amount as the Issuer may determine (any Change of the NotesControl Offer at a higher amount, an “Alternate Offer”)) plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (purchase, subject to the right of Holders of record on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and Interest Payment Date falling on or prior to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at Payment Date (as defined in Section 10.16(a)(2)). Within 30 days following any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will shall send a notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee sent in the same manner, to each Holder to the address of any such Notes by mail Holder appearing in the Note Register or otherwise in accordance with the procedures set forth in this Indentureof the Depository, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 10.16 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 ten days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) sent (the “Change of Control Payment Date”) and ), except in the record datecase of a conditional Change of Control Offer made in advance of a Change of Control pursuant to Section 10.16(e);
(3) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed or otherwise in accordance with the procedures of the Depository, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that if less than all of such Holder’s Notes are tendered for purchase, such Holder will be issued new Notes (or, in the case of global Notes, such Notes shall be reduced by such amount of Notes that the Holder has tendered) and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered; provided that the unpurchased portion of the Notes must be equal to at least $2,000 or an integral multiple of $1,000 in excess of $2,000;
(7) if such notice is mailed sent prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of ControlControl and describing each such condition, and, if applicable, stating that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time (including more than 60 days after the notice is mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or that such purchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that any or all such conditions shall not have been, or will not be, satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and
(7) certain 8) such other procedures instructions, as determined by the Issuer, consistent with this Section 10.16, that a holder Holder must follow.
(b) While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes must follow pursuant to accept a the Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes through the facilities of the Depository, subject to its rules and regulations.
(c) The Issuer shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent such laws or regulations are applicable in connection with the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules repurchase of the exchange so require, the Issuer will notify the exchange of the results of any Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer (including, for the avoidance of doubt, an Alternate Offer) in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer (including, for the avoidance of doubt, an Alternate Offer) may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the such Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hf) If Holders of not less than 90% in aggregate principal amount of the outstanding Outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03as described above, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 ten days’ nor more than 60 days’ prior notice, notice (provided that such notice is given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, ) to redeem (with respect to the Issuer) or purchase (with respect to a third party) all Notes that remain outstanding following such purchase on a date (the “Second Change of Control Payment Date”) at a price in cash equal to 101% the Change of Control Payment (excluding any early tender premium or similar premium and any accrued and unpaid interest to any Holder in such Change of Control Payment) in respect of the principal amount thereof Second Change of Control Payment Date, plus accrued and unpaid interest on the Notes that remain outstanding to, but excluding, the Second Change of Control Payment Date (subject to but excluding the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the Second Change of Control Payment Date).
(g) The provisions of this Section 10.16 (including the definition of “Change of Control”) may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. A Change of Control Offer with respect to the Notes (including, for the avoidance of doubt, an Alternate Offer) may be made at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the Guarantees so long as the offer to purchase a Holder’s Notes in the tender offer is not conditioned upon the delivery of the notice for consents by such redemptionHolder. In determining whether addition, the Issuer or any third party approved in writing by the Issuer that is making the Change of Control Offer (including, for the avoidance of doubt, an Alternate Offer) may increase or decrease the Change of Control Payment (or decline to pay any early tender or similar premium) being offered to Holders at any time in its sole discretion, so long as the Change of Control Payment is at least 90equal to 101% of the aggregate principal amount of the then outstanding Notes have validly tendered being repurchased, plus accrued and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)unpaid interest thereon.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Change of Control. (a) If Except as otherwise provided in this Section 10.7, the Issuers shall commence, no later than 30 days after the occurrence of a Change of Control occursControl, and, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) and conditions of such Holder’s Offer to Purchase, thereafter consummate an Offer to Purchase all Notes then outstanding, at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedinterest, howeverif any, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and . To the record date;
(3) stating extent that the provisions of any Note accepted for payment pursuant to securities laws or regulations conflict with the Change of Control Offer will cease provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to accrue interest after have breached their obligations under the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicableby virtue of such compliance.
(fb) The Issuer will Issuers shall not be required to make an Offer to Purchase as a Change result of Control Offer upon a Change of Control if a third party makes the Change of Control Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control an Offer to Purchase made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change Offer to Purchase or if notice of Control Offer.
(g) redemption has been given pursuant to Section 5 or 6 of the Notes. Notwithstanding anything to the contrary contained herein, a Change of Control an Offer to Purchase may be made in advance of a Change of Control, conditional upon subject to one or more conditions precedent, including, but not limited to, the consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, Offer to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflictPurchase is made.
(hc) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes held by non-Affiliates validly tender and do not validly withdraw such Notes in a Change of Control an Offer to Purchase and the IssuerIssuers, or any third party making a Change of Control the Offer to Purchase in lieu of the Issuer in accordance with this Section 4.03Issuers as described above, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Issuers or such third party will have the right, upon not less than 10 30 days nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveto Purchase, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to to, but excluding not including, the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: First Supplemental Indenture (CareTrust REIT, Inc.)
Change of Control. (a) a. If AHPC is subject to a Change of Control occursunder which AHPC is not the surviving entity, then AHPC shall use diligent efforts to ensure that the Acquiror shall agree to be substituted for AHPC as a party to this Agreement.
b. If ViroPharma is subject to a Change of Control under which ViroPharma is not the terms surviving entity, then ViroPharma shall use diligent efforts to ensure that the Acquiror shall agree to be substituted for ViroPharma as a party to this Agreement and agree to assume in writing all obligations of ViroPharma under this Section 4.03Agreement, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest including but not limited to the date of purchase (subject registration rights described in Section 8 which would then apply to the right Registration Statements of Holders of record on the relevant record date Acquiror, which agreement shall be in a form reasonably acceptable to receive interest due on the relevant interest payment date)AHPC; provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and notwithstanding anything to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures contrary set forth in this IndentureSections 2.1 through 2.3 above, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur from and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence effective date of such Change of Control; and
(7) certain other procedures that , upon a holder of Notes must follow Triggering Event such Acquiror shall have the option to accept a Change of Control Offer or sell to withdraw such acceptance.
(c) The Issuer shall cause to be published AHPC at the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchangeapplicable Purchase Price, and the rules upon such Acquiror's exercise of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control such option AHPC shall have occurredthe obligation to purchase from such Acquiror at the applicable Purchase Price, the Issuer will, that whole number of shares (rounded down to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(enearest share) of the Exchange Act and any other securities laws or regulations in connection Acquiror's common stock determined with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant reference to the Change of Control Offer Acquiror's Market Capitalization, as described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemptionbelow. In determining whether the Holders number of at least 90% shares of Acquiror's common stock that Acquiror may sell to AHPC hereunder, the Purchase Price applicable to the particular Closing shall be divided by the product of the aggregate principal amount applicable Deemed Market Price times the Percentage of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Deemed Market Price.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Change of Control. (a) If a Change of Control occurs, subject occurs with respect to the terms of this Section 4.03Second Lien Notes, each Holder will have the right to require unless the Issuer has previously or substantially concurrently therewith delivered a redemption notice with respect to repurchase all or any part the outstanding Second Lien Notes as provided under SECTION 5.7, the Issuer will make an offer to purchase all of the Second Lien Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase repurchase: provided that (subject to 1) if the right of Holders of record repurchase date is on or after the relevant record date to receive interest due and on or before the relevant corresponding interest payment date), then Holders in whose name the Second Lien Notes are registered at the close of business on such record date will receive interest on the repurchase date; providedand (2) if the Issuer delivered a redemption notice but subsequently did not redeem all outstanding Second Lien Notes pursuant to the terms of this Indenture, however, that then the Issuer shall not be obliged to repurchase Notes as described under make a Change of Control Offer and otherwise comply with the terms of this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waivedSECTION 3.15. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control or, at with respect to the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of ControlSecond Lien Notes, the Issuer will send deliver or cause to be delivered a notice (the “of such Change of Control Offer”) to each Holder of any such Notes by mail or otherwise Offer electronically in accordance with the applicable procedures set forth in this Indentureof DTC or by first-class mail, with a copy to the Trustee:
(1) stating , to each Holder of Second Lien Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC describing the transaction or transactions that a constitute the Change of Control has occurred or may occur and that such Holder has offering to repurchase the right to require Second Lien Notes for the Issuer to purchase all or any part of such Holder’s Notes at a specified purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, on the date of purchase (subject to specified in the right of Holders of record on a record notice, which date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall will be no earlier than 10 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed delivered, pursuant to the procedures required by this Indenture and 60 days after described in such notice, except in the case of a conditional Change of Control Offer made in advance of a Change of Control, as described below:
(1) that a Change of Control Offer is being made pursuant to this SECTION 3.15, and that all Second Lien Notes subject to the Change of ControlControl Offer properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 10 days nor later than 60 days from the date such notice is delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Second Lien Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Second Lien Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Second Lien Notes purchased pursuant to a Change of Control Offer will be required to surrender such Second Lien Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Second Lien Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Second Lien Notes and their election to require the Issuer to purchase such Second Lien Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a notice setting forth the name of the Holder of the Second Lien Notes, the principal amount of Second Lien Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Second Lien Notes and its election to have such Second Lien Notes purchased;
(7) that Holders whose Second Lien Notes are being purchased only in part will be issued new Second Lien Notes and such new Second Lien Notes will be equal in principal amount to the unpurchased portion of the Second Lien Notes surrendered. The unpurchased portion of the Second Lien Notes must be equal to at least $2,000 or any integral multiple of $1,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance consistent with this Section 4.03SECTION 3.15, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Holder must follow.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Change of Control. (a) If a Change of Control occurs, subject Triggering Event occurs with respect to the terms Notes, unless the Company has exercised its option to redeem the Notes in accordance with Section 3.01 of this Section 4.03First Supplemental Indenture, each Holder the Holders of the Notes will have the right to require the Issuer Company to repurchase all or any part (equal to $200,000 or an integral multiple 2,000 and additional multiples of $1,000 in excess thereof1,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the their Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to an offer described below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with on the procedures terms set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Notes. In the Change of Control has occurred or may occur and that such Holder has Offer, the right Company will be required to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price offer payment in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus accrued and unpaid interest interest, if any, on the Notes repurchased to, but not includingexcluding, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);.
(2b) stating Within 30 days following any Change of Control Triggering Event, the Company shall mail a notice to the Holders of the Notes and the Trustee describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date (specified in the notice, which shall date will be no earlier than 10 30 days from the date such notice is mailed nor and no later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment ), pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, procedures required herein and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow described in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptancenotice.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willCompany shall, to the extent lawful:
: (1i) accept for payment all Notes or portion thereof portions of Notes properly tendered pursuant to the Change of Control Offer;
; (2ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so or portions of Notes properly tendered;
; and (3iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Officers’ Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;Company.
(4d) in the case of Global Notes, deliver, or cause to be delivered, to the The Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will shall promptly mail pay to each Holder of Definitive Registered Notes so properly tendered the Change of Control Payment purchase price for such the Notes, and the Trustee will shall promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the any Notes surrendered, if any; provided that each such new Note will shall be in a principal amount that is at least of $200,000 2,000 and integral additional multiples of $1,000 in excess thereof1,000.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws or and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes pursuant to this Section 4.03as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection 4.01, the Issuer will Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section 4.01 by virtue of the conflictsuch conflicts.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(if) The provisions of this Indenture relating to the Issuer’s obligation Company will not be required to make an offer to repurchase the Notes as a result of upon a Change of Control may be waived or modified Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the written consent of holders of a majority in outstanding principal amount of the Notesrequirements for an offer made by it, and such third party purchases all Notes properly tendered and not withdrawn under its offer.
Appears in 1 contract
Sources: First Supplemental Indenture (DENTSPLY SIRONA Inc.)
Change of Control. (a) If a Change of Control occurs, subject the Company shall make an offer to purchase all of the Notes pursuant to the terms offer set forth below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to (but not including) the date of purchase (purchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedInterest Payment Date, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and except to the extent that it the Company has unconditionally exercised its right elected to redeem all of the Notes pursuant to under Section 3.07 or all conditions to such redemption have been satisfied or waived11.01. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, except to the Issuer will extent the Company has elected to redeem all of the Notes under Section 11.01, the Company shall send a notice (the “of such Change of Control Offer”) Offer electronically or by first class mail, with a copy to the Trustee, to each Holder to the address of any such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 10.15 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment;
(2) stating that the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 15 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and ), except in the record datecase of a conditional Change of Control Offer made in advance of a Change of Control as described below in clause (8) of this paragraph;
(3) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) that unless the Company (or third-party offeror) defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes, provided that the Paying Agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, facsimile transmission, electronic transmission or letter or other notice in accordance with DTC procedures setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
(8) if such notice is mailed sent prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control, and, if applicable, stating that, in the Company’s discretion, the Change of Control Payment Date may be delayed until such time as the Change of Control shall have occurred, or that such purchase may not occur and such notice may be rescinded in the event that the Change of Control shall not have occurred by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and
(79) certain the other procedures instructions determined by the Company, consistent with this covenant, that a holder of Notes Holder must follow in order to accept have its Notes purchased.
(b) While the Notes are in global form and the Company makes a Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(c) The Issuer Company shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent such laws or regulations are applicable in connection with the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules repurchase of the exchange so require, the Issuer will notify the exchange of the results of any Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations set forth in this Indenture by virtue thereof.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willCompany shall, to the extent lawful:permitted by law,
(1) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in in, respect of all Notes or portions thereof so tendered;, and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order to reflect thereon the portion of so accepted together with an Officer’s Certificate stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; andCompany.
(5e) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, will Agent shall promptly mail transmit to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will shall promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) and transmit to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will shall be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether . The Company shall publicly announce the results of the Change of Control Offer on or not any other provisions as soon as practicable after the Change of this Indenture are applicableControl Payment Date.
(f) The Issuer will Company shall not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party (including an Affiliate of the Company) makes the Change of Control Offer in the manner, at the times time and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) Notwithstanding anything a notice of redemption has been given for all of the Notes pursuant to Section 11.06, unless and until there is a default in payment of the contrary herein, a applicable Redemption Price. A Change of Control Offer may be made in advance of a Change of Control, and may be made conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act Offer and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall Payment Date may be deemed to be outstanding for the purpose of extended automatically until such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)occurs.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Indenture (Winnebago Industries Inc)
Change of Control. (a) If a Change of Control Repurchase Event occurs, subject unless the Issuers have previously or concurrently delivered a redemption notice with respect to all the terms outstanding Notes under Section 5.7, the Issuers shall make an offer to purchase all of this Section 4.03, each Holder will have the right to require Notes (the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control orRepurchase Event, at the Issuer’s option, at any time prior to a Issuers will deliver notice of such Change of Control following the public announcement thereof Offer electronically or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control Repurchase Event and with the following information:
(1i) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuers;
(2ii) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3iii) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(iv) that unless the Issuers default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(v) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vi) describing that Holders will be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuers to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of ControlControl Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5vii) describing that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the procedures determined by unpurchased portion of the Issuer, consistent with this Indenture, that a Holder Notes surrendered. The unpurchased portion of the Notes must follow be equal to at least $2,000 or any integral multiple of $1,000 in order to have its Notes repurchasedexcess of $2,000;
(6viii) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7ix) certain the other procedures instructions, as determined by the Issuers, consistent with this Section 3.9, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) follow. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuers will, to the extent permitted by law,
(i) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(iii) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuers.
(fc) The Issuer Issuers will not be required to make a Change of Control Offer upon following a Change of Control if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (gii) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.3 unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated due to a failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this Section 3.5, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the IssuerIssuers, or any third party making a Change of Control Offer in lieu of the Issuer Issuers as described in accordance with this Section 4.033.5, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer Issuers or such third party will have the right, upon not less than 10 15 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
(e) The Issuers will comply with the delivery requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of Issuers will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached their obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to by virtue thereof. The Issuers may rely on any no-action letters issued by the Issuer’s obligation to make an offer to repurchase SEC indicating that the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount staff of the NotesSEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
Appears in 1 contract
Sources: Indenture (Ladder Capital Corp)
Change of Control. (a) If Upon the occurrence of a Change of Control occursafter the Issue Date, subject unless the Issuer has previously or concurrently sent a redemption notice with respect to all the outstanding Securities as described in Article 3 hereto, the Issuer will make an offer to purchase all of the Securities pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to to, but not including, the date of purchase (purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is Within 60 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of any Securities to the registered address of such Notes by mail Holder or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1i) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 4.14, and that all Securities properly tendered pursuant to such Holder has the right to require Change of Control Offer will be accepted for payment by the Issuer to purchase all or any part of such Holder’s Notes at a purchase repurchase price in cash equal to 101% of the principal amount of such Notes thereof, plus accrued and unpaid interest to, but not including, the date of purchase (repurchase, subject to the right of Holders of record of the Securities on a the relevant record date to receive interest due on the relevant interest payment date) (the “Change of Control Payment”);
(2ii) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) or otherwise delivered (the “Change of Control Payment Date”), subject to the extension (in the case where such notice was mailed or otherwise delivered prior to the occurrence of the Change of Control) and in the record dateevent that occurrence of the Change of Control is delayed;
(3iii) stating that any Note Security not properly tendered will remain outstanding and continue to accrue interest;
(iv) that unless the Issuer defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after on the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6v) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and;
(7vi) certain other procedures that a holder of Notes must follow Holders electing to accept have any Securities purchased pursuant to a Change of Control Offer or will be required to surrender such Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Securities completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(vii) that Holders will be entitled to withdraw their tendered Securities and their election to require the Issuer to purchase such acceptanceSecurities; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder of the Securities, the principal amount of Securities tendered for purchase, and a statement that such Securities is withdrawing its tendered Securities and its election to have such Securities purchased;
(viii) that if the Issuer is redeeming less than all of the Securities, the Holders of the remaining Securities will be issued new Securities and such new Securities will be equal in principal amount to the unpurchased portion of the Securities surrendered. The unpurchased portion of the Securities must be equal to $1.00 or an integral multiple of $1.00 in excess of $1.00;
(ix) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control and shall describe each such condition, and, if applicable, shall state that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time as any or all such conditions shall be satisfied, or that such repurchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and
(x) the other instructions, as determined by the Issuer, consistent with this Section 4.14, that a Holder must follow. Securities repurchased by the Issuer pursuant to a Change of Control Offer will have the status of Securities issued but not outstanding or will be retired and cancelled at the option of the Issuer. Securities purchased by a third party pursuant to the preceding paragraph will have the status of Securities issued and outstanding. The notice, if electronically delivered or mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is electronically delivered or mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Securities as to all other Holders that properly received such notice without defect. If the Securities are in global form and the Issuer makes an offer to purchase all of the Securities pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Securities or withdraw such election through the facilities of DTC, subject to its rules and regulations. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase by the Issuer of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof. Notwithstanding the foregoing, the Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1i) accept for payment all Notes Securities issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes Securities or portions thereof so tendered;; and
(3iii) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order Securities so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee stating that such Notes Securities or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fd) The Issuer will shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes Securities validly tendered and not validly withdrawn under such Change of Control Offer.
(g) . Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, .
(e) Notwithstanding anything to the extent applicablecontrary herein, with a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the requirements Change of Section 14(e) Control at the time of making of the Exchange Act and any other securities laws Change of Control.
(f) A Change of Control Offer may be made at the same time as consents are solicited with respect to an amendment, supplement or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions waiver of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Securities, Guarantees and/or Security Documents (but the Change of Control Offer may not condition tenders on the delivery of such consents).
(g) Other than as specifically provided in this Section 4.14, any purchase pursuant to this Section 4.14 shall be made pursuant to the provisions of this Indenture by virtue of the conflictSections 3.04, 3.07 and 3.08.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation obligations to make an offer to repurchase the Notes Securities as a result of a Change of Control under this Section 4.14 may be waived or modified with the written consent of holders the Holders of a majority in outstanding principal amount of the NotesSecurities.
Appears in 1 contract
Sources: Indenture (Party City Holdco Inc.)
Change of Control. (a) If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes as described under Section 5.7 that is or has become unconditional and subject to the terms of this Section 4.033.9(c), each Holder will have the right to require the Issuer shall make an offer to repurchase purchase all or any part of the Notes pursuant to the offer described below (equal to $200,000 or an integral multiple the “Change of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) to each Holder of any such Notes Offer electronically or by mail or otherwise in accordance with the procedures set forth in this Indenturefirst-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, as provided for in Section 2.3, describing the transaction or transactions that constitute the Change of Control and including the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest interest, on and after the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed (subject to any contrary procedures of DTC with respect to Global Notes), to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered (with the unpurchased portion of the Notes required to be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000);
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Depositary. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer and directing the Trustee to cancel such Notes.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Supplemental Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Supplemental Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not consummated for any reason on or before the 60th day after such Change of Control. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest interest, if any, to but excluding the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Supplemental Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to have breached its obligations described in this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)Supplemental Indenture by virtue thereof.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Supplemental Indenture (Community Health Systems Inc)
Change of Control. (a) If a Change of Control occurs, subject the Company shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to the date of purchase (purchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); providedInterest Payment Date, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and except to the extent that it the Company has unconditionally exercised its right elected to redeem all of the Notes under Section 1101 of this Indenture (including pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control Redemption). Within 30 days following the public announcement thereof or if a definitive agreement is in place for the any Change of Control, except to the Issuer will extent the Company has elected to redeem the Notes under Section 1101 of this Indenture, the Company shall send a notice (the “of such Change of Control Offer”) Offer electronically or by first class mail, with a copy to the Trustee, to each Holder to the address of any such Notes by mail Holder appearing in the security register of Holders, or otherwise in accordance with the procedures set forth in this Indenture, of the Depository with a copy to the Trustee, with the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 1017 and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment;
(2) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and ), except in the record datecase of a conditional Change of Control Offer made in advance of a Change of Control as described in clause (8) below;
(3) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(5) Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the paying agent receives, not later than the close of business on the last day of the offer period, an electronic transmission, facsimile transmission, or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 or an integral multiple of $1,000 in excess thereof; and
(8) if such notice is mailed sent prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; , and, if applicable, stating that, in the Company’s discretion, the Change of Control Payment Date may be delayed until such time as the Change of Control shall have occurred, or that such purchase may not occur and such notice may be rescinded in the event that the Change of Control shall not have occurred by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed.
(7b) certain other procedures that a holder of While the Notes must follow to accept are in global form and the Company makes a Change of Control Offer or Offer, a Holder may exercise its option to withdraw such acceptanceelect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(c) The Issuer Company shall cause comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to be published the notice described above through extent such laws or regulations are applicable in connection with the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules repurchase of the exchange so require, the Issuer will notify the exchange of the results of any Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willCompany shall, to the extent lawful:permitted by law,
(1) accept for payment all Notes or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order to reflect thereon the portion of so accepted together with an Officers’ Certificate stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; andCompany.
(5e) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, will Agent shall promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will shall promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will shall be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will . The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Subject to any laws relating to abandoned property, the Paying Agent, if not the Company, shall return to the Company any cash that remains unclaimed, together with interest, if any, thereon, held by the Paying Agent for the payment of the amount required pursuant to the Change of Control Offer. The Trustee shall have no requirement to invest any such cash unless directed by the Company in writing and such investment shall be applicable whether or not any other provisions of this Indenture are applicablemutually acceptable to the Trustee and the Company.
(f) The Issuer will Company shall not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times time and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) Notwithstanding anything a notice of redemption has been given for all of the Notes pursuant to Section 1106 of this Indenture, unless and until there is a default in payment of the contrary herein, a applicable Redemption Price. A Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act Offer and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall Payment Date may be deemed to be outstanding for the purpose of extended automatically until such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03)occurs.
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Indenture (Aleris Corp)
Change of Control. If (ai) If at any time during the term of this Agreement there is a Change of Control occurs, subject to (as defined in the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part Plan) and within one (equal to $200,000 or an integral multiple of $1,000 in excess thereof1) year of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send Executive elects to terminate this Agreement for Good Reason or the Company elects to terminate this Agreement Without Cause, (ii) within twenty-one (21) days of his termination the Executive executes a notice general release and non-competition agreement in favor of the Company, its subsidiaries and their Affiliates in the form of Exhibit B attached hereto and such release becomes effective and is not revoked, and (iii) the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance Executive complies with the procedures terms of this Agreement and Exhibits A and B hereto, the Executive shall be entitled to (w) receive the continuation of health and welfare benefits for a period equal to one (1) year after the date of termination, (x) an amount in cash equal to one hundred percent (100%) of Executive’s then-current base salary, (y) acceleration of all of the Executive’s unvested awards pursuant to any equity incentive plan grant made prior to the Executive’s last day of employment with the Company, and (z) for a period of twelve (12) months following the Executive’s last day of employment with the Company to exercise all then-vested equity incentive awards (unless the period provided for under the applicable plan for the particular award would provide for a longer period of exercise following termination of employment in similar circumstances). Notwithstanding Section 8.4 above, if the Executive receives the payments provided for in this Section 8.10, the Executive is not entitled to any payments pursuant to Section 8.4.The severance payment payable to the Executive pursuant to this clause of this Section 8.10 will be paid in one lump sum and in the manner set forth in this Indenture, with a copy to the Trustee:
(1) stating that Section 5 hereof. For purposes of determining whether a Change of Control has occurred or may occur and that such Holder has under this Agreement, the right to require the Issuer to purchase all or any part acquisition of such Holder’s Notes at a purchase price additional stock and/or convertible securities by ▇▇▇▇▇▇ ▇▇▇▇▇ and/or his affiliates resulting in cash equal to 101him and/or his affiliates beneficially owning more than 50% of the principal amount total voting power of such Notes plus accrued and unpaid interest to, but the stock of the Company will not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of considered a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Change of Control. If (a) If more than fifty percent of the voting power of the outstanding equity securities of Tickets becomes beneficially owned by a person or a group (within the meaning of the Securities Exchange Act of 1934, as amended), (b) a majority of the board of directors of Tickets on the date of this Agreement is replaced (other than with nominees recommended by the board of directors of Tickets on the date of this Agreement, or such persons' nominees) or (c) a tender offer or an exchange offer is commenced that would result in a person or a group beneficially owning more than fifty percent of the voting power of the outstanding equity securities of Tickets (a "Change of Control occursControl"), subject to the terms of this Section 4.03▇▇▇▇▇▇▇, each Holder will in its sole and unfettered discretion, shall have the right to require withdraw as counsel in the Issuer Litigation. ▇▇▇▇▇▇▇ shall notify Tickets of its election pursuant to repurchase all or any part (equal to $200,000 or an integral multiple this paragraph 14 within seven days of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject to the right ▇▇▇▇▇▇▇ receiving notice of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
(1) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If Tickets proposes to enter into any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail agreement with respect to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon Tickets shall include in such Change of Control, if agreement a definitive agreement is in place provision for the purchaser's and its parent company's (if any) assumption of Tickets' obligations under this Agreement. Within fourteen days of Tickets' receipt of ▇▇▇▇▇▇▇'▇ election to withdraw, Tickets shall substitute other lawyers as Tickets' counsel in the Litigation. If there is a change of Change of Control at the time and Tickets further fails to substitute new counsel as set forth in this paragraph 14, Tickets hereby consents to ▇▇▇▇▇▇▇'▇ withdrawal as counsel of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act record for Tickets and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent agrees and covenants that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and it will not be deemed oppose, in any fashion or form, any motion made by ▇▇▇▇▇▇▇ in the Litigation to have breached its obligations under the Change withdraw as counsel of Control provisions of this Indenture by virtue of the conflict.
(h) record for Tickets. If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in there is a Change of Control Offer and ▇▇▇▇▇▇▇ elects to withdraw as counsel in the IssuerLitigation, Tickets shall pay, and ▇▇▇▇▇▇▇ shall be entitled to receive as compensation for the legal services provided in the Litigation, either (a) the amount of Contract Contingent Fee or any third party making a Change (b) the Enhanced Hourly Fee. ▇▇▇▇▇▇▇ shall make its election in writing within thirty (30) days of Control Offer in lieu its withdrawal. The foregoing provisions notwithstanding, if Tickets provides ▇▇▇▇▇▇▇ with written notice of the Issuer change of control no less than 45 days' in accordance with this Section 4.03, purchases all advance of the Notes validly tendered and not validly withdrawn by such Holderschange (which, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereofthese purposes, shall be deemed occur when the parties negotiating the change of control reach agreement on the terms thereof) in control, ▇▇▇▇▇▇▇ agrees it will not unreasonably withhold its consent to be outstanding for waive the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating Paragraph 16. If, within 15 days after timely notice, ▇▇▇▇▇▇▇ does not grant an unconditional waiver, Tickets may take the issue of whether ▇▇▇▇▇▇▇ should have waived--or whether conditions ▇▇▇▇▇▇▇ attached to any waiver were reasonable--to immediate arbitration before Judge ▇▇▇▇▇ (who will consider whether the Issuer’s obligation change in control impacts ▇▇▇▇▇▇▇'▇ expectations under this Agreement or its ability to make an offer to repurchase prosecute the Notes as a result Litigation). Any award favoring Tickets must be rendered before the change of a Change of Control may be waived or modified with control and must include adequate assurances and measures protecting ▇▇▇▇▇▇▇'▇ interests and expectations under this Agreement and in the written consent of holders of a majority in outstanding principal amount of the NotesLitigation.
Appears in 1 contract
Change of Control. (a) If a Change of Control occurs, subject unless the Issuer has previously or concurrently delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, to but excluding the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver notice (the “of such Change of Control Offer”) Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder of any Notes at the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, describing the transaction or transactions that constitute the Change of Control and with a copy to the Trusteefollowing information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchasedDate;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(eb) This Section 4.03 will On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be applicable whether delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or not any other provisions of this Indenture are applicableportions thereof have been tendered to and purchased by the Issuer.
(fc) The Issuer will not be required to make a Change of Control Offer upon following a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
Offer or (g2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary hereinin this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(hd) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in accordance with this Section 4.033.9, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described aboveOffer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of redemption.
(e) The Issuer will comply, to the delivery extent applicable, with the requirements of Rule 14e-1 under the notice for Exchange Act and any other securities laws and regulations thereunder to the extent such redemption. In determining whether laws or regulations are applicable in connection with the Holders repurchase of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of will comply with the Issuer, or any successor thereof, applicable securities laws and regulations and shall not be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made have breached its obligations described in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notesby virtue thereof.
Appears in 1 contract
Sources: Indenture (Essar Steel Algoma Inc.)
Change of Control. If (ai) If a Change any Person (or two or more Persons acting in concert) shall have acquired beneficial ownership, directly or indirectly of Control occurs, subject to the terms of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part more than fifty percent (equal to $200,000 or an integral multiple of $1,000 in excess thereof50%) of such Holder’s Notes at the outstanding voting equity interests of Company on a purchase price in cash equal to 101% fully diluted basis; (ii) during any period of twelve (12) consecutive months, a majority of the principal amount members of the Notes, plus accrued and unpaid interest board of directors of Company cease to the date be composed of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the Trustee:
individuals (1) stating who were members of that a Change of Control has occurred board or may occur and that such Holder has equivalent governing body on the right to require the Issuer to purchase all or any part first day of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest toperiod, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2) stating the repurchase date (which shall be no earlier than 10 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;
(3) stating whose election or nomination to that any Note accepted for payment pursuant board was approved by individuals referred to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent with this Indenture, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
clause (1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control above constituting at the time of making such election or nomination at least a majority of that board, or (3) whose election or nomination to that board was approved by individuals referred to in clauses (1) and (2) above constituting at the Change time of Control Offer. The Issuer will complysuch election or nomination at least a majority of that board; (iii) Company ceases to, to the extent applicabledirectly or indirectly, with the requirements own and control 100% of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue of the conflict.
(h) If Holders of not less than 90% in aggregate principal amount each class of the outstanding Notes validly tender and do not validly withdraw such Notes in equity interests of each other Loan Party; or (iv) a Change "change of Control Offer and control" or similar event occurs under the IssuerTerm Loan Debt Documents; (m) Reserved. (n) Invalid Liens. If any Lien purported to be created by any Loan Document shall cease to be a valid perfected first priority Lien (subject only to any priority accorded by law to Permitted Liens) on any material portion of the ABL Priority Collateral, or second priority Lien (subject only to any priority accorded by law to Permitted Liens) on any material portion of the Term Loan Priority Collateral, or any third party making a Change of Control Offer Loan Party or any Other Obligor shall assert in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant writing that any Lien purported to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned be created by any Affiliate of Loan Document is not a valid perfected first-priority lien (subject only to any priority accorded by law to Permitted Liens) on the Issuer assets or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed properties comprising ABL Priority Collateral purported to be outstanding for covered thereby or second-priority lien (subject only to any priority accorded by law to Permitted Liens) on the purpose of such Change of Control Offer. Any redemption pursuant assets or properties comprising Term Loan Priority Collateral purported to this Section 4.03 shall be made in accordance with Section 3.03 covered thereby, as applicable; (other than the time periods specified therein, which shall be made in accordance with this Section 4.03o).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Loan and Security Agreement (Neos Therapeutics, Inc.)
Change of Control. (a) If a Change of Control occurs, subject unless the Issuer has previously or concurrently mailed a redemption notice with respect to all the outstanding Notes as described in Section 5.07, the Issuer shall make an offer to purchase all of the Notes pursuant to the terms offer described below (the “Change of this Section 4.03, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereofControl Offer”) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest interest, and Additional Interest, if any, to the date of purchase (purchase, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will shall send a notice (the “of such Change of Control Offer”) Offer by first-class mail, with a copy to the Trustee, to each Holder of any Notes to the address of such Notes by mail Holder appearing in the security register or otherwise in accordance with the procedures set forth in this Indentureof DTC, with a copy to the Trusteefollowing information:
(1i) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.09, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer shall be accepted for payment by the Issuer;
(2ii) stating the repurchase date (purchase price and the purchase date, which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date);
(3iii) stating that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(iv) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will shall cease to accrue interest after on the Change of Control Payment Date unless Date;
(v) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interestDate;
(4vi) describing that Holders shall be entitled to withdraw their tendered Notes and their election to require the circumstances and relevant facts regarding Issuer to purchase such Notes; provided that the transaction or transactions that constitute Paying Agent receives, not later than the expiration time of the Change of ControlControl Offer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(5vii) describing that if the procedures determined by Issuer is redeeming less than all of the IssuerNotes, consistent with this Indenture, that a Holder the Holders of the remaining Notes shall be issued new Notes and such new Notes shall be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must follow be equal to $2,000 or an integral multiple of $1,000 in order to have its Notes repurchased;excess thereof.
(6viii) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7ix) certain the other procedures instructions, as determined by us, consistent with the covenant described hereunder, that a holder of Notes Holder must follow to accept a Change of Control Offer or to withdraw such acceptancefollow.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(db) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer willshall, to the extent lawful:permitted by law,
(1i) accept for payment all Notes issued by it or portion portions thereof properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent paying agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered;; and
(3iii) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent Trustee for cancellation the applicable Global Notes in order so accepted together with an Officer’s Certificate to reflect thereon the portion of Trustee stating that such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(fc) The Issuer will shall not be required to make a Change of Control Offer upon following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gd) With respect to the Notes, if Holders of not less than 95% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described in this Section 3.09, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, and Additional Interest, if any, thereon, to the date of redemption.
(e) Notwithstanding anything to the contrary hereinin this Section 3.09, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. .
(f) The Issuer will comply, to the extent applicable, shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase by the Issuer of Notes pursuant to this Section 4.03a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of described in this Indenture by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Sources: Indenture (Radioshack Corp)
Change of Control. (a) If Upon a Change of Control occurs, subject to the terms of this Section 4.03Control, each Holder will shall have the right to require that the Issuer to Issuers repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s 's Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, thereof plus accrued and unpaid interest interest, if any, thereon to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest due on the relevant interest payment date); provided, howeverin accordance with the terms contemplated in Section 4.14(b). Prior to the mailing of the notice referred to below, that but in any event within 30 days following the Issuer shall not date on which a Change of Control occurs, the Issuers covenant to (i) repay in full all Indebtedness under the New Credit Agreement (and terminate all commitments thereunder) or offer to repay in full all such Indebtedness (and terminate all such commitments) and to repay the Indebtedness owed to (and terminate the commitments of) each lender which has accepted such offer or (ii) obtain the requisite consents under the New Credit Agreement to permit the repur chase of the Notes as provided below. The Issuers will first comply with the cove nant in the preceding sentence before they will be obliged required to repurchase Notes as pursuant to the provisions described below; provided that the Issuers failure to comply with the covenant described in the preceding sentence shall constitute an Event of Default described under this clause (v) under Section 4.03 in the event 6.1 and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by any holder to below $200,000not under clause (ii) thereof.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 Within 30 days after following any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, unless notice of redemption of the Issuer will send Notes has been given pursuant to the provisions of Section 3.7, the Issuers shall mail a notice (the “Change of Control Offer”) to each Holder of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture, with a copy to the TrusteeTrustee (the "Change of Control Offer") stating:
(1i) stating that a Change of Control has occurred or may occur and that such Holder has the right to require the Issuer Issuers to purchase all or any part of such Holder’s 's Notes at a purchase price in cash equal to 101% of the principal amount (the "Change of such Notes Control Purchase Price") thereof plus accrued and unpaid interest tointerest, but not includingif any, thereon to the date of purchase pur chase (subject to the right of Holders holders of record on a the relevant record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”);
(2ii) stating the repurchase circumstances and relevant facts regarding such Change of Control;
(iii) the purchase date (the "Change of Control Purchase Date") (which shall be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) (the “Change of Control Payment Date”) and the record date;mailed); and
(3iv) stating that any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures instructions determined by the IssuerIssuers, consistent with this Indenturethe covenant described hereunder, that a Holder must follow in order to have its Notes repurchased;
(6) if such notice is mailed prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(7) certain other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) purchased. The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased by the Issuer; and
(5) in the case of Definitive Registered Notes, deliver, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer. If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense, will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount that is at least $200,000 and integral multiples of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) The Issuer Issuers will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this the Indenture applicable to a Change of Control Offer made by the Issuer Issuers and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(gc) Notwithstanding anything On or before the Change of Control Purchase Date, the Issuers shall, to the contrary hereinextent lawful, a (i) accept for payment Notes or portions thereof properly tendered and not validly withdrawn pursuant to the Change of Control Offer may be made (together with the appropriate form as provided for in advance of a Change of ControlExhibit A or B), conditional upon such Change of Control, if a definitive agreement is (ii) deposit with the Trustee or Paying Agent an amount in place for cash sufficient to pay the Change of Control at Purchase Price (together with accrued and unpaid interest, if any), of all Notes so tendered and (iii) deliver or cause to be delivered to the time Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof being purchased by the Issuers. The Trustee or Paying Agent promptly will pay the Holders of making of Notes so accepted an amount equal to the Change of Control OfferPurchase Price (together with accrued and unpaid interest, if any), and the Trustee promptly will authenticate and deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted will be delivered promptly by the Issuers to the Holders thereof.
(d) On the purchase date, all Notes purchased by the Issuers under this Section 4.14 shall be delivered to the Trustee for cancellation, and the Issuers shall pay or cause to be paid the purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto.
(e) At the time the Issuers deliver Notes to the Trustee which are to be accepted for purchase, the Issuers shall also deliver an Officers' Certificate stating that such Notes are to be accepted by the Issuers pursuant to and in accordance with the terms of this Section 4.14. A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(f) The Issuer will Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03Section. To the extent that the provisions of any securities laws or regulations conflict with provisions of this IndentureSection, the Issuer will Issuers shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under the Change of Control provisions of this Indenture Section by virtue of the conflictthereof.
(h) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
Appears in 1 contract
Change of Control. (a) If a Change of Control occurs, subject unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all of the terms outstanding Notes as set forth under Section 5.7(a) or Section 5.7(d), the Company will make an offer (the “Change of this Section 4.03, each Holder will have Control Offer”) to purchase all of the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount of the Notes, thereof plus accrued and unpaid interest to interest, if any, to, but excluding, the date of purchase (repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by Within 30 days following any holder to below $200,000.
(b) Unless the Issuer has unconditionally exercised its right to redeem all the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to a Change of Control following the public announcement thereof or if a definitive agreement is in place for the Change of Control, the Issuer will send a deliver or cause to be delivered notice (the “of such Change of Control Offer”) to each Holder of any such Notes by mail or otherwise Offer electronically in accordance with the procedures set forth in this Indentureof DTC or by first class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register, with the following information:
(1) stating that a Change of Control has occurred or may occur Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Holder has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date) (the “Change of Control Payment”)Offer will be accepted for payment by the Issuer;
(2) stating the repurchase date (purchase price and the purchase date, which shall will be no earlier than 10 30 days from the date such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days after the Change of Control) delivered (the “Change of Control Payment Date”) and the record date);
(3) stating that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after interest, on the Change of Control Payment Date unless Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment is not paidDate, and that any Notes or part thereof not tendered will continue to accrue interest;
(4) describing the circumstances and relevant facts regarding the transaction or transactions that constitute the Change of Control;
(5) describing the procedures determined by the Issuer, consistent otherwise comply with this Indenture, that a Holder must follow in order to have its Notes repurchasedDTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8) if such notice is mailed delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and
(79) certain the other procedures that a holder of Notes must follow to accept a Change of Control Offer or to withdraw such acceptance.
(c) The Issuer shall cause to be published the notice described above through the newswire service of Bloomberg (or if Bloomberg does not then operateinstructions, any similar agency). In addition, if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the exchange of the results of any Change of Control Offer.
(d) On the Change of Control Payment Date, if the Change of Control shall have occurred, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portion thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes so tendered;
(3) deliver or cause to be delivered to the Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the Change of Control Offer;
(4) in the case of Global Notes, deliver, or cause to be delivered, to the Paying Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions thereof that have been tendered to and purchased as determined by the Issuer; and
(5) in the case of Definitive Registered Notes, deliverconsistent with this Section 3.9, or cause to be delivered, to the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuerthat a Holder must follow. If any Definitive Registered Notes have been issued, the The applicable Paying Agent, at the Issuer’s expense, Agent will promptly mail deliver to each Holder of Definitive Registered the Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate and, at the Issuer’s expense, and mail (or cause to be transferred by book-entry) to each Holder of Definitive Registered Notes a new Definitive Registered Note equal in principal amount to the any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount that is at least of $200,000 and 2,000 or an integral multiples multiple of $1,000 in excess thereof.
(e) This Section 4.03 will be applicable whether or not any other provisions of this Indenture are applicable.
(f) . The Issuer will not be required to make a Change publicly announce the results of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer.
(g) Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for on or as soon as practicable after the Change of Control at the time of making of Payment Date. If the Change of Control Offer. The Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date.
(b) On the Change of Control Payment Date, the Issuer will complywill, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture permitted by virtue of the conflict.law,
(h1) If Holders of not less than 90% in aggregate principal amount of the outstanding accept for payment all Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, issued by it or any third party making a Change of Control Offer in lieu of the Issuer in accordance with this Section 4.03, purchases all of the Notes validly portions thereof properly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a price in cash Offer,
(2) deposit with the applicable Paying Agent an amount equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the date of the delivery of the notice for such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a Change of Control OfferPayment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes owned so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by any Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified therein, which shall be made in accordance with this Section 4.03).
(i) The provisions of this Indenture relating to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified with the written consent of holders of a majority in outstanding principal amount of the Notes.
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Sources: Indenture (Owens & Minor Inc/Va/)