Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes. (1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders. (2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met. (c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee. (d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture. (e) (i) In the event that Parent or Company elects to: (A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or (B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 2 contracts
Sources: Supplemental Indenture (Prologis), Supplemental Indenture (Amb Property Lp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February October 15, 2013 2012 at a rate (the “Exchange Rate”) of 5.8569 5.4874 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February October 15, 20132012, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 5.4874 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February October 15, 20132012, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 20082011, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Second Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Second Supplemental Indenture.
(e) (i) In the event that the Company or Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of shares of Common Stock, Stock assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a Fundamental Change, a Holder may surrender Notes for exchange at any time from and after the 30th scheduled Trading Day prior to the anticipated Effective Date of such transaction or event until the related Fundamental Change Repurchase Date and, upon such surrender, the Holder shall be entitled to the increase in the Exchange Rate, if any, specified in Section 8.01(g). The Company shall give notice to all record Noteholders and the Trustee and issue a press release of the Fundamental Change no later than 30 scheduled Trading Days prior to the anticipated Effective Date of the Fundamental Change.
(iii) If Parent is a party to a consolidation, merger, binding share exchange or sale or conveyance of all or substantially all of its properties and assets, in each case pursuant to which the shares of Common Stock would be exchanged into cash, securities and/or other property, then the Holders shall have the right to exchange Notes at any time beginning fifteen calendar days prior to the date announced by the Company as the anticipated effective date of the transaction and until and including the date that is fifteen calendar days after the date that is the effective date of such transaction; provided such transaction does not otherwise constitute a Fundamental Change to which the provisions of Section 8.01(e)(ii) shall apply. The Company shall give notice to all record Noteholders and the Trustee and issue a press release at least 20 calendar days prior to the anticipated effective date of such transaction. If the Board of Directors determines the anticipated effective date of the transaction, such determination shall be conclusive and binding on the Holders.
(f) The Notes shall be exchangeable at any time beginning on the first Business Day after any 30 consecutive Trading Day period during which the Common Stock is not listed on a United States national securities exchange.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Prologis, L.P.), Second Supplemental Indenture (Amb Property Lp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 151, 2013 2012 at a rate (the “Exchange Rate”) of 5.8569 5.8752 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 151, 20132012, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 5.8752 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 151, 20132012, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30March 31, 20082007, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C A of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C A of the Twelfth Supplemental Indenture.
(e) (i) In the event that the Company or Parent or Company elects to:
(Ai) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(Bii) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 2 contracts
Sources: Supplemental Indenture (Prologis), Supplemental Indenture (Amb Property Lp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or in an integral multiple thereof) Authorized Denomination of such Note Note:
(i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February September 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2026, under the circumstances and during the periods set forth below. On and after February 15in Section 14.01(b), 2013, regardless of but in no event prior to the Initial Exchange Date unless the conditions described in clause Section 14.01(b)(ii) or Section 14.01(b)(iii) are satisfied; and
(bii) through (f) belowon or after September 15, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof2026, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled second Scheduled Trading Day immediately preceding the Maturity Date Date; in each case, at an Exchange Rate initial exchange rate of 5.8569 7,498.2210 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.0414.04 and, if applicable, Section 14.03, the “Exchange Rate”) per $1,000 250,000 principal amount of NotesNotes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”).
(1b) A (i) Prior to the close of business on the Business Day immediately preceding September 15, 2026, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, in an Authorized Denomination for exchange at any time during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 250,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures and conditions described below in this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price per share of the Common Stock on such date and the Exchange Rate on each such date, all as determined by Trading Day.
(A) The Bid Solicitation Agent (if other than the Trustee in the manner described in the immediately succeeding paragraph. The Trustee Company) shall have no obligation to determine the Trading Price per $250,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price) unless a Noteholder or Noteholders Holder of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Company makes such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 250,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time per share of Common Stock and the then-applicable Exchange RateRate on such Trading Day. At such time, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent (if other than the Company) to provide a secondary market quotation for determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $250,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 250,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such date and the then-applicable Exchange Rate. Trading Day.
(B) If the Trading Price condition set forth above has been met, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 250,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such Trading Day, the Company shall promptly so notify the Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(C) If the Company does not, when it is required to, instruct the Bid Solicitation Agent to (or, if the Company is acting as Bid Solicitation Agent, it does not) obtain bids, or if the Company gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination (or, if the Company is acting as Bid Solicitation Agent, it fails to make such determination), then, in either case, the Trading Price per $250,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price on such date per share of Common Stock and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for Rate on each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trusteefailure.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 2 contracts
Sources: Indenture (Galaxy Digital Holdings Ltd.), Indenture (Galaxy Digital Inc.)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 151, 2013 2012 at a rate (the “Exchange Rate”) of 5.8569 5.8752 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 151, 20132012, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 5.8752 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 151, 20132012, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 20082011, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth First Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth First Supplemental Indenture.
(e) (i) In the event that the Company or Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of shares of Common Stock, Stock assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 2 contracts
Sources: First Supplemental Indenture (Prologis, L.P.), First Supplemental Indenture (Amb Property Lp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIThirteen, a upon Satisfaction of the Exchange Privilege Condition, each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15the Maturity Date, 2013 at a an initial exchange rate of 666.6700 shares of Common Stock (equivalent to an initial exchange price of approximately $1.50 per share) (subject to adjustment as provided in Sections 13.05 and 13.06, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to the settlement provisions of Sections 13.03 and 13.04, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through Notwithstanding any provision to the contrary herein (f) below, upon compliance with the provisions of this Article VIII and but subject to Section 8.11 hereof13.04(b)), a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”i) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence event that the Trading Price per Issuers’ Cancellation Condition shall be satisfied, $1,000 120 million principal amount of the Notes would (or such lesser amount as shall then be less than 98% outstanding) shall no longer be exchangeable and shall automatically, and without any further action required of the product of the Last Reported Sale Price at such time any party, be immediately cancelled and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writingdebt thereunder extinguished, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2ii) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 Issuers’ Exchange Condition shall be satisfied, at the option of the Base Indenture and Section 3.03 of this Annex C of Issuers, the Twelfth Supplemental Indenture Issuers may cause all remaining outstanding Notes to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, be exchanged into shares of Common Stock at a price less than the Last Reported Sale Price Exchange Rate; provided that the option set forth in clause (ii) must be exercised by the Issuers’ within 15 Business Days of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities satisfaction of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take placeIssuers’ Exchange Condition. The Company shall notify Holders of any distribution referred Issuers will follow the procedures set forth in this Article 13 to in either clause (A) or clause (B) above and of settle the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distributionExchange Obligation.
Appears in 2 contracts
Sources: Note Purchase Agreement (Clearwire Corp /DE), Note Purchase Agreement (Sprint Nextel Corp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 20082011, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Third Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Third Supplemental Indenture.
(e) (i) In the event that the Company or Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of shares of Common Stock, Stock assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a Fundamental Change, a Holder may surrender Notes for exchange at any time from and after the 30th scheduled Trading Day prior to the anticipated Effective Date of such transaction or event until the related Fundamental Change Repurchase Date and, upon such surrender, the Holder shall be entitled to the increase in the Exchange Rate, if any, specified in Section 8.01(g). The Company shall give notice to all record Noteholders and the Trustee and issue a press release of the Fundamental Change no later than 30 scheduled Trading Days prior to the anticipated Effective Date of the Fundamental Change.
(iii) If Parent is a party to a consolidation, merger, binding share exchange or sale or conveyance of all or substantially all of its properties and assets, in each case pursuant to which the shares of Common Stock would be exchanged into cash, securities and/or other property, then the Holders shall have the right to exchange Notes at any time beginning fifteen calendar days prior to the date announced by the Company as the anticipated effective date of the transaction and until and including the date that is fifteen calendar days after the date that is the effective date of such transaction; provided such transaction does not otherwise constitute a Fundamental Change to which the provisions of Section 8.01(e)(ii) shall apply. The Company shall give notice to all record Noteholders and the Trustee and issue a press release at least 20 calendar days prior to the anticipated effective date of such transaction. If the Board of Directors determines the anticipated effective date of the transaction, such determination shall be conclusive and binding on the Holders.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Prologis, L.P.), Third Supplemental Indenture (Amb Property Lp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if so long as the portion to be exchanged is $1,000 principal amount or an integral multiple thereof, and so long as the principal amount of such beneficial owner’s Notes not exchanged is at least $200,000) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15August 1, 2013 2022 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after August 1, 2022 and prior to the close of business on the Business Day immediately preceding the Maturity Date, in each case, at a an initial exchange rate of 92.6956 ADSs (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate August 1, 2022, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the ADSs on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to obtain bids when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to do so, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the ADSs and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII8, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 1520, 2013 2012 at a rate (the “Exchange Rate”) of 5.8569 6.6090 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes Note (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 1520, 20132012, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII 8 and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of NotesDate.
(1b) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 1520, 20132012, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraphTrustee. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and instruct the Trustee in writing, and to determine the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30March 31, 20082007, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII8. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 11.04 of the Base Senior Indenture and Section 3.03 of this Annex C of the Twelfth Sixth Supplemental Indenture to the Holders holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Sixth Supplemental Indenture.
(e) (i) In the event that Parent the Company or Company Boston Properties elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 daysdays after the record date for such distribution, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent Boston Properties or rights to purchase the Company’s or Parent’s Boston Properties’ securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a Fundamental Change, a holder may surrender Notes for exchange at any time from and after the 30th scheduled Trading Day prior to the anticipated Effective Date of such transaction or event until the related Fundamental Change Repurchase Date and, upon such surrender, the holder shall be entitled to the increase in the Exchange Rate, if any, specified in Section 8.01(g). The Company shall give notice to all record Noteholders and the Trustee and issue a press release of the Fundamental Change no later than 30 scheduled Trading Days prior to the anticipated effective date of the Fundamental Change.
(iii) If Boston Properties is a party to a consolidation, merger, binding share exchange or sale or conveyance of all or substantially all of its properties and assets, in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property, then the holders shall have the right to exchange Notes at any time beginning fifteen calendar days prior to the date announced by the Company as the anticipated effective date of the transaction and until and including the date that is fifteen calendar days after the date that is the effective date of such transaction; provided such transaction does not otherwise constitute a Fundamental Change to which the provisions of Section 8.01(e)(ii) shall apply. The Company will notify holders of Notes at least 20 calendar days prior to the anticipated effective date of such transaction. If the Board of Directors determines the anticipated effective date of the transaction, such determination shall be conclusive and binding on the holders.
(f) The Notes shall be exchangeable at any time beginning on the first Business Day after any 30 consecutive Trading Day period during which Common Stock is not listed on either a U.S. national securities exchange.
Appears in 1 contract
Sources: Supplemental Indenture (Boston Properties LTD Partnership)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15July 1, 2013 2035, and other than during the period from, and including, July 1, 2020 to the close of business on the Business Day immediately preceding October 1, 2020, under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), (x) at a any time during the period from, and including, July 1, 2020 to the close of business on the Business Day immediately preceding October 1, 2020, and (y) on or after July 1, 2035 and prior to the close of business on the Business Day immediately preceding the Maturity Date, in each case, at an initial exchange rate (the “Exchange Rate”) of 5.8569 10.4827 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14 and in the Registration Rights Agreement, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding July 1, 2035, and other than during the Maturity Date at an Exchange Rate period from, and including, July 1, 2020 to the close of 5.8569 shares business on the Business Day immediately preceding October 1, 2020, a Holder may surrender all or any portion of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a written request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so has requested such determination in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time of the Common Stock and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent to provide a secondary market quotation for determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Extra Space Storage Inc.)
Exchange Privilege. (a) Subject Holders may not exchange their Notes at any time on or prior to the conditions described in clauses (b) through (f) below and Distribution Compliance Period End Date. After the Distribution Compliance Period End Date, subject to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 has an aggregate principal amount of US$200,000 or an integral multiple of US$1,000 in excess thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15July 1, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2023 under the circumstances and during the periods set forth below. On in Section 14.01(b), and after February 15, 2013, (ii) regardless of the conditions described in clause (b) through (f) belowSection 14.01(b), upon compliance with the provisions of this Article VIII on or after July 1, 2023 and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date Date, in each case, at an Exchange Rate initial exchange rate of 5.8569 shares of Common Stock 24.7795 ADSs (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $US$1,000 principal amount of NotesNotes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”).
(b) (i) Prior to the close of business on the Business Day immediately preceding July 1) A , 2023, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $US$1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per US$1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per US$1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $US$1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the ADSs on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $US$1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per US$1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per US$1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the ADSs and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $US$1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange RateRate for such date, the Company shall shall, when such Trading Price is first greater than or equal to such amount, so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Trip.com Group LTD)
Exchange Privilege. (ai) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIThirteen, a upon Satisfaction of the Exchange Privilege Condition, each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15the Maturity Date, 2013 at a an initial exchange rate of 666.6700 shares of Common Stock (equivalent to an initial exchange price of approximately $1.50 per share) (subject to adjustment as provided in Sections 13.05 and 13.06, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to the settlement provisions of Sections 13.03 and 13.04, the “Exchange Obligation”).
(j) under Notwithstanding any provision to the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause contrary herein (b) through (f) below, upon compliance with the provisions of this Article VIII and but subject to Section 8.11 hereof13.04(b)), a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”i) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% event that the Issuers’ Cancellation Condition shall be satisfied, the Issuers shall no longer be obligated to effect any exchange otherwise required or permitted herein in respect of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least first $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 120 million principal amount of the Notes would issued hereunder (or such lesser amount as shall then be less than 98% of the product of the Last Reported Sale Price at such time outstanding) and the then-applicable Exchange Rate, at which time the Company Holders thereof shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the promptly deliver such Notes and provide such determination to the Company Issuers or Trustee for cancellation and the Trustee in writingdebt thereunder shall be extinguished upon such surrender, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2ii) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 Issuers’ Exchange Condition shall be satisfied, at the option of the Base Indenture and Section 3.03 of this Annex C of Issuers, the Twelfth Supplemental Indenture Issuers may cause all remaining outstanding Notes to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, be exchanged into shares of Common Stock at a price less than the Last Reported Sale Price Exchange Rate; provided that the option set forth in clause (ii) must be exercised by the Issuers’ within 15 Business Days of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities satisfaction of the Company or Parent or rights Issuers’ Exchange Condition. The Issuers will follow the procedures set forth in this Article 13 to purchase settle the Company’s or Parent’s securities, which distribution has a per share value (as determined by resulting Exchange Obligation. In the Board of Trustees) exceeding 15% of event the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may Holder does not surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until option set forth in clause (i) for cancellation, the earlier of the close of business Issuers shall no longer have any obligation to pay principal and interest on the Business Day immediately preceding the Ex-Dividend Date for such distribution or Notes after the date Parent announces that the Issuers’ Cancellation Condition was satisfied and such distribution will failure to pay such principal and interest shall not take place. The Company shall notify Holders constitute an Event of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distributionDefault.
Appears in 1 contract
Sources: Indenture (Clearwire Corp /DE)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note solely into cash (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding December 15, 2022, and (ii) irrespective of the conditions described in Section 14.01(b), during the period from, and including, December 15, 2022 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate of 29.9679 Ordinary Shares (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) ). The Notes shall not be exchangeable into Ordinary Shares or any other securities under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause any circumstances.
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A December 15, 2022, a Holder of Notes shall have the right, at such Holder’s option, to exchange may surrender its Notes prior to February 15, 2013, for exchange solely into cash during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection 14.01(b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date Ordinary Shares and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection 14.01(b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Bid Solicitation Agent shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company has requested it in writing to do so make such determination in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time of the Ordinary Shares and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent in writing to provide a secondary market quotation for determine the Trading Price per $1,000 principal amount of Notes in accordance with the provisions of the definition of Trading Price set forth in this Indenture beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes Note is greater than or equal to 98% of the product of the Last Reported Sale Price of the Ordinary Shares and the Exchange Rate. If on any date of determination (i) the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from an independent nationally recognized securities dealer on any determination date, (ii) the Company has failed to request the Bid Solicitation Agent to obtain bids when required, (iii) the Company requested the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent has failed to obtain such bids or (iv) the Bid Solicitation Agent has obtained one or more such bids but the Company has failed to determine the Trading Price per $1,000 principal amount of Notes for the relevant day, then, in any such case, the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Ordinary Shares and the then-applicable Exchange RateRate for the Notes on such date. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Ordinary Shares and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding March 15, 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, March 15, 2026 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 3.30287.1288 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate March 15, 2026, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if so long as the portion to be exchanged is $1,000 principal amount or an integral multiple thereof, and so long as the principal amount of such beneficial owner’s Notes not exchanged is at least $200,000) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15May 1, 2013 2023 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after May 1, 2023 and prior to the close of business on the Business Day immediately preceding the Maturity Date, in each case, at a an initial exchange rate of 92.6956 ADSs (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate May 1, 2023, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock ADSs on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the ADSs on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to obtain bids when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to do so, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the ADSs and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the ADSs and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or in an integral multiple thereof) Authorized Denomination of such Note Note:
(i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15September 1, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2029, under the circumstances and during the periods set forth below. On and after February 15in Section 14.01(b), 2013, regardless of but in no event prior to the Initial Exchange Date unless the conditions described in clause Section 14.01(b)(ii) or Section 14.01(b)(iii) are satisfied; and
(bii) through (f) belowon or after September 1, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof2029, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled second Scheduled Trading Day immediately preceding the Maturity Date Date; in each case, at an Exchange Rate initial exchange rate of 5.8569 10,497.5856 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.0414.04 and, if applicable, Section 14.03, the “Exchange Rate”) per $1,000 250,000 principal amount of NotesNotes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”).
(b) (i) Prior to the close of business on the Business Day immediately preceding September 1) A , 2029, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, in an Authorized Denomination for exchange at any time during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 250,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures and conditions described below in this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price per share of the Common Stock on such date and the Exchange Rate on each such date, all as determined by Trading Day.
(A) The Bid Solicitation Agent (if other than the Trustee in the manner described in the immediately succeeding paragraph. The Trustee Partnership) shall have no obligation to determine the Trading Price per $250,000 principal amount of the Notes unless the Partnership has requested by the Company to do so in writingsuch determination, and the Company Partnership shall have no obligation to make such request (or, if the Partnership is acting as Bid Solicitation Agent, the Partnership shall have no obligation to determine the Trading Price) unless a Noteholder or Noteholders Holder of at least $1,000,000 aggregate 5,000,000 principal amount of Notes requests in writing that the Partnership makes such a determination and provides the Company Partnership with reasonable evidence that the Trading Price per $1,000 250,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time per share of Common Stock and the then-applicable Exchange RateRate on such Trading Day. At such time, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company Partnership shall instruct the Independent Securities Dealers Bid Solicitation Agent (if other than the Partnership) to provide a secondary market quotation for determine, or if the Partnership is acting as Bid Solicitation Agent, the Partnership shall determine, the Trading Price per $250,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 250,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such date and the then-applicable Exchange Rate. Trading Day.
(B) If the Trading Price condition set forth above has been met, the Company Partnership shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 250,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per share of Common Stock and the Exchange Rate on such Trading Day, the Partnership shall promptly so notify the Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(C) If the Partnership does not, when it is required to, instruct the Bid Solicitation Agent to (or, if the Partnership is acting as Bid Solicitation Agent, it does not) obtain bids, or if the Partnership gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination (or, if the Partnership is acting as Bid Solicitation Agent, it fails to make such determination), then, in either case, the Trading Price per $250,000 principal amount of the Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price on such date per share of Common Stock and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for Rate on each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trusteefailure.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Galaxy Digital Inc.)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion of such Note (if the portion to be exchanged converted is $1,000 principal amount or an integral multiple thereof):
(i) subject to satisfaction of such Note the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February March 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2030 under the circumstances and during the periods set forth below. On and after February 15, 2013, in Section 14.01(b); and
(ii) regardless of the conditions described in clause (b) through (f) belowSection 14.01(b), upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereofon or after March 15, a Noteholder shall have the right2030, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date Date, in each case, subject to certain limitations set forth in Section 14.01(c) and at an Exchange Rate initial exchange rate of 5.8569 shares of Common Stock 29.1189 Ordinary Shares (subject to adjustment by the Company as provided in Section 8.04Section 14.04 and, if applicable, Section 14.03, the “Exchange Rate”) per $1,000 principal amount of NotesNotes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”).
(1b) A (i) Prior to the close of business on the Business Day immediately preceding March 15, 2030, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, in an Authorized Denomination for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures and conditions described below in this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date per Ordinary Share and the Exchange Rate on each such date, all as determined by Trading Day.
(A) The Bid Solicitation Agent (if other than the Trustee in the manner described in the immediately succeeding paragraph. The Trustee Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price) unless a Noteholder or Noteholders Holder of at least $1,000,000 in aggregate principal amount of Notes requests in writing that the Company makes such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time per Ordinary Share and the then-applicable Exchange RateRate on such Trading Day. At such time, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent (if other than the Company) to provide a secondary market quotation for determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per Ordinary Share and the Exchange Rate on such date and the then-applicable Exchange Rate. Trading Day.
(B) If the Trading Price condition set forth above has been met, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per Ordinary Share and the Exchange Rate on such date and the then-applicable Exchange RateTrading Day, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(2C) Any request by If the Company does not, when it is required to, instruct the Bid Solicitation Agent to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarteror, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”Company is acting as Bid Solicitation Agent, it does not) on such last Trading Dayobtain bids, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify or if the Company gives such instruction to the Bid Solicitation Agent and the Trustee.
Bid Solicitation Agent fails to make such determination (d) In the event that or, if the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture is acting as Bid Solicitation Agent, it fails to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange make such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distributiondetermination), then, in either case, Holders may surrender the Trading Price per $1,000 principal amount of the Notes for exchange at any time on and after the date that Parent provides notice shall be deemed to Holders referred to in the next sentence until the earlier be less than 98% of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and product of the resulting exchange right no later than Last Reported Sale Price per Ordinary Share and the 35th Business Exchange Rate on each Trading Day prior to the Ex-Dividend Date for of such distributionfailure.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange solely into cash all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding September 15, 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time on or after September 15, 2025 and prior to the close of business on second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate of 16.3980 Ordinary Shares (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02) (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate September 15, 2025, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date Ordinary Shares and the Exchange Rate on each such date, all as Trading Day and the Exchange Rate on each such Trading Day (the “Trading Price Condition”). The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price of the Notes solicit bids as described above unless requested by the Company to do so has requested such solicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to solicit such bids) unless a Noteholder one or Noteholders more Holders of at least $1,000,000 2,000,000 in aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Ordinary Shares on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to solicit, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes solicit such bids beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Ordinary Shares and the then-applicable Exchange Rate. The Company will determine the Trading Price in accordance with the bids solicited by the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the Bid Solicitation Agent to solicit bids, or the Company gives such instruction to the Bid Solicitation Agent, and the Bid Solicitation Agent fails to make such solicitation, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such solicitation when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Ordinary Shares and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above Condition has been metmet on any Trading Day, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing or within one Business Day of such Trading Day. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Ordinary Shares and the then-applicable Exchange RateRate for such Trading Day, the Company shall so notify the Noteholders.
(2) Any request by Holders of the Company to Notes, the Trustee for a determination of and the Trading Price and whether Exchange Agent (if other than the Trustee) in writing that the Trading Price condition set forth in is no longer met, and thereafter neither the first sentence of Company nor the immediately preceding paragraph has been met Bid Solicitation Agent (if other than the Company) shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (required to solicit bids again until another qualifying request is made as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been metdescribed above.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (LivaNova PLC)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding September 15, 2025 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) on or after September 15, 2025 and prior to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 47.1403 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate September 15, 2025, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection Section 14.01(b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Price shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Avid Bioservices, Inc.)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February October 15, 2013 2012 at a rate (the “Exchange Rate”) of 5.8569 5.4874 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February October 15, 20132012, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 5.4874 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February October 15, 20132012, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30December 31, 20082007, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C B of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C B of the Twelfth Supplemental Indenture.
(e) (i1) In the event that the Company or Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Supplemental Indenture (Prologis)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding October 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, October 15, 2029 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 3.43237.4083 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate October 15, 2029, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII8, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note Notes held by such Holder at any time prior to the close of business on the scheduled Scheduled Trading Day immediately preceding February 15January 1, 2013 2014 at a rate (the “Exchange Rate”) of 5.8569 8.5051 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04, the “Exchange Rate”) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth belowbelow (the “Enumerated Exchange Obligations”). On and In addition, on or after February 15January 1, 20132014, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to Holders may exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of Notes held by such Note Holder at any time prior to the Exchange Rate per $1,000 principal amount of Notes until the close of business on the scheduled second Scheduled Trading Day immediately preceding the Maturity Date at an (the “Maturity Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by Obligation,” and together with the Company as provided in Section 8.04) per $1,000 principal amount of NotesEnumerated Exchange Obligations, the “Exchange Obligation”).
(1b) A Holder of Notes shall have the right, at such Holder’s option, to surrender Notes for exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day Trading Day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraphTrustee. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder Holder or Noteholders Holders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and instruct the Trustee in writing, and to determine the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been metHolders.
(c) A Holder of Notes shall have the right, at such Holder’s option, to surrender Notes for exchange Notes during any calendar fiscal quarter after the fiscal quarter ended June ending September 30, 2008, and but only during such calendar fiscal quarter, if the Last Reported Sale Price for of the Common Stock for each of at least 20 Trading Days during the period of 30 consecutive Trading Days ending on on, and including, the last Trading Day of the previous calendar immediately preceding fiscal quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII8. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar fiscal quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 11.04 of the Base Senior Indenture and Section 3.03 of this Annex C of the Twelfth Seventh Supplemental Indenture to the Holders of Notes, a Holder of Notes may surrender Notes for exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Seventh Supplemental Indenture.
(e) (i) In the event that Parent the Company or Company Boston Properties elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 daysdays after the record date for such distribution, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent Boston Properties or rights to purchase the Company’s or Parent’s Boston Properties’ securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
(ii) If the Company is a party to any transaction or event that constitutes a Fundamental Change, a holder may surrender Notes for exchange at any time from and after the 30th Scheduled Trading Day prior to the anticipated Effective Date of such transaction or event until the related Fundamental Change Repurchase Date and, upon such surrender, the holder shall be entitled to the increase in the Exchange Rate, if any, specified in Section 8.01(g) upon the consummation (if any) of the Fundamental Change. The Company shall give notice to all record Holders and the Trustee of the anticipated effective date of the Fundamental Change, and issue a press release, promptly after the Company first determines the anticipated effective date of the Fundamental Change; provided that the Company will not be required to give such notice more than 30 Scheduled Trading Days in advance of such anticipated effective date.
(iii) If Boston Properties is a party to a consolidation, merger, binding share exchange or sale or conveyance of all or substantially all of its properties and assets, in each case pursuant to which the Common Stock would be converted into cash, securities and/or other property, then the holders shall have the right to exchange Notes at any time beginning fifteen calendar days prior to the date announced by the Company as the anticipated effective date of the transaction and until and including the date that is fifteen calendar days after the date that is the effective date of such transaction unless: (x) the persons that “beneficially owned,” directly or indirectly, shares of Boston Properties voting stock immediately prior to such transaction beneficially own, directly or indirectly, shares of voting stock representing a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person or a parent thereof, (y) such transaction is effected solely for the purpose of changing Boston Properties’ jurisdiction of incorporation and results in a reclassification, exchange or exchange of outstanding shares of common stock, if at all, solely into shares of the surviving entity or a direct or indirect parent of the surviving entity or (z) the transaction is between or among Boston Properties, the Company or their respective subsidiaries; provided such transaction does not otherwise constitute a Fundamental Change to which the provisions of Section 8.01(e)(ii) shall apply. The Company will notify holders of Notes promptly after first determining the anticipated effective date of such transaction; provided that the Company will not be required to give such notice more than 20 calendar days in advance of such anticipated effective date. If the Board of Directors determines the anticipated effective date of the transaction, such determination shall be conclusive and binding on the Holders.
Appears in 1 contract
Sources: Supplemental Indenture (Boston Properties LTD Partnership)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII8, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or in an integral multiple thereofAuthorized Denomination) of such Note at any time prior into cash, Ordinary Shares or a combination of cash and Ordinary Shares (together with cash in lieu of , in each case, based on an initial exchange rate of 129.1656 Ordinary Shares (subject to the close of business on the scheduled Trading Day immediately preceding February 15adjustment as provided in this Article 8, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 8.02, the “Exchange Obligation”).
(b) under Notes may be exchanged only in the following circumstances and during the periods set forth below. On and after February 15following times (except that, 2013notwithstanding anything to the contrary in the Indenture or the Notes, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or no event may any portion (if the portion to Note be exchanged is $1,000 principal amount or an integral multiple thereof) after the Close of such Note at any time prior to the close of business Business on the scheduled second (2nd) Scheduled Trading Day immediately preceding before the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.Date):
(1i) A Holder of Notes shall have the right, at such Holder’s option, to exchange may surrender all or any portion of its Notes prior for exchange at any time during any calendar quarter commencing after the calendar quarter ending on September 30, 2016 (and only during such calendar quarter), if the Last Reported Sale Price of the Ordinary Shares for each of at least twenty (20) Trading Days (whether or not consecutive) during the period of thirty (30) consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to February 15, 2013, one hundred and thirty percent (130%) of the Exchange Price for the Notes on such Trading Day.
(ii) A Holder may surrender all or any portion of its Notes for exchange at any time during the five (5) Business Day period immediately after any ten (10) consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this clause (ii), for each day Trading Day of such the Measurement Period was less than ninety eight percent (98% %) of the product of the Last Reported Sale Price of the Common Stock on such date Ordinary Shares and the Exchange Rate on such dateTrading Day (the condition set forth in this sentence, all as the “Trading Price Condition”). The Trading Prices shall be determined by the Trustee in Bid Solicitation Agent pursuant to this clause (ii) and the manner described in the immediately succeeding paragraphdefinition of Trading Price. The Trustee shall Bid Solicitation Agent (if not the Company) will have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so has requested such determination in writing, and the Company shall will have no obligation to make such request (or seek bids itself) unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than ninety eight percent (98% %) of the product of the Last Reported Sale Price at such time per Ordinary Share and the then-applicable Exchange Rate. If a Holder provides such evidence, at which time then the Company shall select three independent nationally recognized securities dealers will (each, an “Independent Securities Dealer”if acting as Bid Solicitation Agent), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall or will instruct the Independent Securities Dealers to provide a secondary market quotation for Bid Solicitation Agent to, determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to ninety eight percent (98% %) of the product of the Last Reported Sale Price per Ordinary Share on such date Trading Day and the then-applicable Exchange RateRate on such Trading Day. If the Trading Price condition Condition has been met after determination as set forth above has been metabove, then the Company will provide the Holders, the Company shall so notify Trustee and the NoteholdersExchange Agent with notice of the same. If at If, on any time Trading Day after the Trading Price condition Condition has been met after determination as set forth above has been metabove, the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety eight percent (98% %) of the product of the Last Reported Sale Price per Ordinary Share on such date Trading Day and the then-applicable Exchange RateRate on such Trading Day, then the Company will provide the Holders, the Company shall so notify Trustee and the NoteholdersExchange Agent with notice of the same.
(2iii) Any request by If the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute issue, to all or substantially all holders of Common Stock Ordinary Shares, any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Ordinary Shares and are not exercisable until the occurrence of a triggering event, except that such rights will be deemed to be issued under this clause (A) upon their separation from the Ordinary Shares or upon the occurrence of such triggering event) entitling them to purchasethem, for a period expiring within 60 daysof not more than sixty (60) calendar days after the record date of such issuance, shares of Common Stock to subscribe for or purchase Ordinary Shares at a price per share that is less than the average of the Last Reported Sale Price of Prices per Ordinary Share for the Common Stock for ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately preceding before the declaration date of such distributionissuance is announced; or
(B) distribute distribute, to all or substantially all holders of Common StockOrdinary Shares, the assets or debt securities of the Company or Parent or rights to subscribe for or purchase the Company’s securities (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Ordinary Shares and are not exercisable until the occurrence of a triggering event, except that such rights will be deemed to be issued under this clause (B) upon their separation from the Ordinary Shares or Parent’s securitiesupon the occurrence of such triggering event), which distribution per Ordinary Share has a per share value (value, as reasonably determined by the Board of TrusteesCompany, exceeding fifteen percent (15%) exceeding 15% of the Last Reported Sale Price of the Common Stock per Ordinary Share on the day Trading Day immediately preceding before the date of declaration of such distributiondistribution is announced, then, in either case, Holders may surrender (x) the Notes for exchange at any time on Company will provide notice of such issuance or distribution, and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on related right to exchange Notes, to Holders, the Business Day immediately preceding Trustee and the Exchange Agent at least forty-two (42) Scheduled Trading Days before the Ex-Dividend Date for such distribution issuance or distribution; and (y) once the date Parent announces Company has given such notice, Holders may exchange their Notes at any time until the earlier of the Close of Business on the Business Day immediately before such Ex-Dividend Date and the Company’s announcement that such issuance or distribution will not take place. The Company shall notify Holders of any distribution referred ; provided, however, that the Notes will not become exchangeable pursuant to in either clause (Ay) above (but the Company will be required to provide notice of such issuance or distribution pursuant to clause (Bx) above above) on account of such issuance or distribution if each Holder participates, at the same time and on the same terms as holders of Ordinary Shares, and solely by virtue of being a Holder, in such issuance or distribution without having to exchange such Holder’s Notes and as if such Holder held a number of Ordinary Shares equal to the resulting product of (I) the Exchange Rate in effect on the record date for such issuance or distribution; and (II) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such date.
(iv) If a Fundamental Change, Make-Whole Fundamental Change or Ordinary Share Change Event occurs (other than a merger or other business combination transaction that is effected solely to change the Company’s or the Parent’s jurisdiction of incorporation and that does not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case, Holders may exchange right no their Notes at any time from, and including, the effective date of such transaction or event to, and including, the thirty fifth (35th) Trading Day after such effective date (or, if such transaction or event also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date). No later than such effective date, the 35th Company will provide notice to the Holders, the Trustee and the Exchange Agent of such transaction or event, such effective date and the related right to exchange Notes.
(v) If the Company calls any Note for Redemption, then the Holder of such Note may exchange such Note at any time before the Close of Business on the Business Day prior immediately before the related Redemption Date (or, if the Company fails to pay the Ex-Dividend Redemption Price due on such Redemption Date for in full, at any time until such distributiontime as the Company pays such Redemption Price in full).
(vi) A Holder may exchange its Notes at any time from, and including, January 1, 2021 until the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity Date.
Appears in 1 contract
Sources: Ninth Supplemental Indenture (Weatherford International PLC)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding July 1, 2022 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, July 1, 2022 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 6.5713 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate July 1, 2022, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Iac/Interactivecorp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note Note:
(i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding September 15, 2023 under the circumstances and during the periods set forth in Section 14.01(b);
(ii) on or after September 15, 2023, at any time prior to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date; in each case, 2013 at a an initial exchange rate of 12.0260 ADSs (subject to adjustment as provided in Section 14.04 and, if applicable, Section 14.03, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) belowPrior to the close of business on the Business Day immediately preceding September 15, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof2023, a Noteholder shall have the right, at such holder’s option, to exchange Holder may surrender all or any portion of its Notes (if the portion to be exchanged that is $1,000 principal amount or an integral multiple thereof) of such Note for exchange at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures described below in this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date ADSs and the Exchange Rate on each such date, all as determined by Trading Day.
(A) The Bid Solicitation Agent (if other than the Trustee in the manner described in the immediately succeeding paragraph. The Trustee Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price) unless a Noteholder or Noteholders Holder of at least $1,000,000 aggregate principal amount of Notes requests in writing that the Company makes such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time of the ADSs and the then-applicable Exchange RateRate on such Trading Day. At such time, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent (if other than the Company) to provide a secondary market quotation for determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the ADSs and the Exchange Rate on such date and the then-applicable Exchange Rate. Trading Day.
(B) If the Trading Price condition set forth above has been met, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the ADSs and the Exchange Rate on such date and the then-applicable Exchange RateTrading Day, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(2C) Any request by If the Company does not, when it is required to, instruct the Bid Solicitation Agent to (or, if the Company is acting as Bid Solicitation Agent, it does not) obtain bids, or if the Company gives such instruction to the Trustee for a Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination of (or, if the Company is acting as Bid Solicitation Agent, it fails to make such determination), then, in either case, the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price per $1,000 principal amount of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, be deemed to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130be less than 98% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% product of the Last Reported Sale Price of the Common Stock ADSs and the Exchange Rate on the day immediately preceding the date of declaration each Trading Day of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distributionfailure.
Appears in 1 contract
Sources: Indenture (NICE Ltd.)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIIX, a each Holder of Notes shall a Note will have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or in an integral multiple thereofAuthorized Denomination) of such Note (i) subject to satisfaction of the conditions provided in Section 9.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding March 1, 2023, under the circumstances and during the periods set forth in Section 9.01(b), and (ii) irrespective of the conditions provided in Section 9.01(b), on or after March 1, 2023, and prior to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 at a rate (the “in each case, based on an initial Exchange Rate”) Rate of 5.8569 22.4090 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.049.04, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 9.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding March 1, 2023, the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to may be surrendered for exchange its Notes prior to February 15, 2013, during the five Business Business-Day period immediately after any ten consecutive Trading Trading-Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on each such date, all as Trading Day. The Trading Prices will be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Supplemental Indenture. The Trustee shall Company will provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) will have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so has requested such determination in writing, and the Company shall will have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company will have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Noteholder or Noteholders Holder of at least $1,000,000 5,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time of the Common Stock and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers will instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct will determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall will so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate, the Company shall will so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met) in writing.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: First Supplemental Indenture (Encore Capital Group Inc)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note solely into cash (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding December 15, 2022, and (ii) irrespective of the conditions described in Section 14.01(b), during the period from, and including, December 15, 2022 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date , 2013 in each case, at a an initial exchange rate of 29.9679 Ordinary Shares (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) ). The Notes shall not be exchangeable into Ordinary Shares or any other securities under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause any circumstances.
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A December 15, 2022, a Holder of Notes shall have the right, at such Holder’s option, to exchange may surrender its Notes prior to February 15, 2013, for exchange solely into cash during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes , as determined following a request by a Holder of Notes in accordance with this subsection 14.01(b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date Ordinary Shares and the Exchange Rate on each such date, all as Trading Day . The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection 14.01(b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture . The Trustee Bid Solicitation Agent shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company has requested it in writing to do so make such determination in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time of the Ordinary Shares and the then-applicable Exchange RateRate , at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent in writing to provide a secondary market quotation for determine the Notes Trading Price per $1,000 principal amount of Note s in accordance with the provisions of the definition of Trading Price set forth in this Indenture beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes Note is greater than or equal to 98% of the product of the Last Reported Sale Price of the Ordinary Shares and the Exchange Rate . If on any date of determination (i) the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000 ,000 principal amount of Notes from an independent nationally recognized securities dealer on any determination date, (ii) the Company has failed to request the Bid Solicitation Agent to obtain bids when required, (iii) the Company requested the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent has failed to obtain such bids or (iv) the Bid Solicitation Agent has obtained one or more such bids but the Company has failed to determine the Trading Price per $1,000 principal amount of Notes for the relevant day, then, in any such case, the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Ordinary Shares and the then-applicable Exchange RateRate for the Notes on such date. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee ). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Ordinary Shares and the then-applicable Exchange RateRate , the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination Holders of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotationsNotes , the Trustee shall determine and the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of Exchange Agent (if other than the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding March 15, 2026 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, March 15, 2026 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 3.3028 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate March 15, 2026, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Iac/Interactivecorp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII8, a Holder of Notes shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding February 15May 18, 2013 at a rate (the “Exchange Rate”) of 5.8569 8.9461 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes Note (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15May 18, 2013, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII 8 and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of NotesDate.
(1b) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15May 18, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraphTrustee. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and instruct the Trustee in writing, and to determine the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98100% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98100% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 20082006, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII8. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 11.04 of the Base Senior Indenture and Section 3.03 of this Annex C of the Twelfth Fifth Supplemental Indenture to the Holders holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Fifth Supplemental Indenture.
(e) (i) In the event that Parent the Company or Company Boston Properties elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 daysdays after the record date for such distribution, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent Boston Properties or rights to purchase the Company’s or Parent’s Boston Properties’ securities, which distribution has a per share value (as determined by the Board of TrusteesDirectors) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders holders may surrender the Notes for exchange at any time on and after the date that Parent the Company provides notice to Holders holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent the Company announces that such distribution will not take place. The Company shall notify Holders holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if so long as the portion to be exchanged is $1,000 principal amount or an integral multiple thereof, and so long as the principal amount of such beneficial owner’s Notes not exchanged is at least $200,000) of such Note at any time prior to the close earlier of business on (a) the scheduled Trading Day immediately preceding February 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause (b) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date and the Exchange Rate on such date, all as determined by the Trustee in the manner described in the immediately succeeding paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless requested by the Company to do so in writing, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time and the then-applicable Exchange Rate, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide delivers a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers to provide a secondary market quotation for the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date and the then-applicable Mandatory Exchange Rate. If the Trading Price condition set forth above has been met, the Company shall so notify the Noteholders. If at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale Price on such date and the then-applicable Exchange Rate, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption Notice in accordance with Section 1104 14.13(c) (provided that if the Company delivers a Mandatory Exchange Notice in respect of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with Section 14.13(c) but does not consummate the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date Mandatory Exchange in respect of such distribution; or
(B) distribute Note on or before the third Business Day after the related Mandatory Exchange Date other than primarily due to all a failure of such Holder or substantially all holders beneficial owner, as the case may be, to comply with its obligations in respect of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value such Mandatory Exchange (as reasonably determined by the Board of TrusteesCompany), this clause (a) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration will no longer apply to such Note for purposes of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on Mandatory Exchange Notice) and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of (b) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or Maturity Date, in each case, at an initial exchange rate of 102.3018 ADSs (subject to adjustment as provided in this Article 14, the date Parent announces that such distribution will not take place. The Company shall notify Holders “Exchange Rate”) per $1,000 principal amount of any distribution referred to Notes (subject to, and in either clause accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”).
(Ab) or clause (B) above and of the resulting exchange right no later than the 35th Business Day If, prior to the Ex-Dividend Date close of business on the Business Day immediately preceding January 15, 2027, Avadel elects to:
(i) issue to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than the average of the Last Reported Sale Prices of the Ordinary Shares or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of Ordinary Shares then represented by one ADS), for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(ii) distribute to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) assets, securities or rights to purchase securities, which distribution has a per Ordinary Share value, as reasonably determined by Avadel’s Board of Directors, exceeding 10% of (i) the Last Reported Sale Price of the ADSs on the Trading Day preceding the date of announcement for such distribution., divided by (ii) the number of Ordinary Shares then represented by one ADS,
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Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding October 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, October 15, 2029 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 3.4323 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate October 15, 2029, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
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Sources: Indenture (Iac/Interactivecorp)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion of such Note (if the portion to be exchanged converted is $1,000 principal amount or an integral multiple thereof):
(i) subject to satisfaction of such Note the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February October 15, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2029 under the circumstances and during the periods set forth below. On and after February 15, 2013, in Section 14.01(b); and
(ii) regardless of the conditions described in clause (b) through (f) belowSection 14.01(b), upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereofon or after October 15, a Noteholder shall have the right2029, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date Date, in each case, subject to certain limitations set forth in Section 14.01(c) and at an Exchange Rate initial exchange rate of 5.8569 shares of Common Stock 38.1570 Ordinary Shares (subject to adjustment by the Company as provided in Section 8.04Section 14.04 and, if applicable, Section 14.03, the “Exchange Rate”) per $1,000 principal amount of NotesNotes (subject to the settlement provisions of Section 14.02, the “Exchange Obligation”).
(1b) A (i) Prior to the close of business on the Business Day immediately preceding October 15, 2029, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, in an Authorized Denomination for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures and conditions described below in this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on such date per Ordinary Share and the Exchange Rate on each such date, all as determined by Trading Day.
(A) The Bid Solicitation Agent (if other than the Trustee in the manner described in the immediately succeeding paragraph. The Trustee Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price) unless a Noteholder or Noteholders Holder of at least $1,000,000 in aggregate principal amount of Notes requests in writing that the Company makes such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such time per Ordinary Share and the then-applicable Exchange RateRate on such Trading Day. At such time, at which time the Company shall select three independent nationally recognized securities dealers (each, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to the Company and the Trustee in writing, and the Company shall instruct the Independent Securities Dealers Bid Solicitation Agent (if other than the Company) to provide a secondary market quotation for determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of the Notes beginning on the next Trading Day following the receipt of such evidence and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per Ordinary Share and the Exchange Rate on such date and the then-applicable Exchange Rate. Trading Day.
(B) If the Trading Price condition set forth above has been met, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price per Ordinary Share and the Exchange Rate on such date and the then-applicable Exchange RateTrading Day, the Company shall promptly so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing.
(2C) Any request by If the Company does not, when it is required to, instruct the Bid Solicitation Agent to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met.
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarteror, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”Company is acting as Bid Solicitation Agent, it does not) on such last Trading Dayobtain bids, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify or if the Company gives such instruction to the Bid Solicitation Agent and the Trustee.
Bid Solicitation Agent fails to make such determination (d) In the event that or, if the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture is acting as Bid Solicitation Agent, it fails to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange make such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distributiondetermination), then, in either case, Holders may surrender the Trading Price per $1,000 principal amount of the Notes for exchange at any time on and after the date that Parent provides notice shall be deemed to Holders referred to in the next sentence until the earlier be less than 98% of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and product of the resulting exchange right no later than Last Reported Sale Price per Ordinary Share and the 35th Business Exchange Rate on each Trading Day prior to the Ex-Dividend Date for of such distributionfailure.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIIIArticle 14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15, 2013 2028 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after February 15, 2028 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at a an initial exchange rate of 117.6471 Units of Reference Property (subject to adjustment as provided in this Article 14, the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under ). The Trustee, the circumstances Paying Agent, the Exchange Agent, the Note Registrar and during the periods set forth below. On and after February 15Collateral Agent shall have no obligation to make any determination in connection with the foregoing, 2013, regardless including any determination as to whether any of the conditions described in clause Section 14.01(b) have been satisfied.
(bi) through (f) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 20132028, a Holder may surrender all or any portion of its Notes for exchange at any time during the five Business Day period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder or Holders of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price Value of the Common Stock a Unit of Reference Property on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Noteholder Holder or Noteholders Holders of at least $1,000,000 5,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at Value of a Unit of Reference Property on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select instruct three independent nationally recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date Value of a Unit of Reference Property and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or the Company gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on any date shall be deemed to be less than 98% of the product of the Value of a Unit of Reference Property and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing. If Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date Value of a Unit of Reference Property and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotationsHolders, the Trustee and the Exchange Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes, and provide such determination to the Company. Absent manifest error, the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until Notes as set forth in this Indenture) again unless a Responsible Officer of the Trustee shall have received a new Holder request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been metis made as provided in this subsection (b)(i).
(cii) A Holder of Notes shall have the rightIf, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding February 15, 2028, Aurora (or, if a Unit of Reference Property includes, in whole or in part, other shares of Common Equity or American depositary receipts (or other interests) in respect thereof (in addition to, or in lieu of, Aurora Common Stock), the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange issuer of such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(eother securities) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Aurora Common Stock or such other securities, as the case may be, any rights, options or warrants (other than in connection with a stockholder rights plan prior to the separation of such rights from Aurora Common Stock or such other securities, as the case may be) entitling them them, at any time on or prior to purchasethe Maturity Date, to subscribe for a period expiring within 60 days, or purchase shares of Aurora Common Stock or such other securities at a price per share or per security that is less than the average of the Last Reported Sale Price Prices of the Aurora Common Stock or such other securities, as the case may be, for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date of announcement of such distribution; or
(B) distribute to all or substantially all holders of Aurora Common StockStock or such other securities, assets as the case may be, Aurora’s or debt such other issuer’s assets, securities of the Company or Parent or rights to purchase the CompanyAurora’s or Parentsuch other issuer’s securities (other than in connection with a stockholder rights plan prior to separation of such rights from Aurora Common Stock or such other securities, as the case may be), which distribution has a Fair Market Value per share value (or per security, as reasonably determined by the Board of Trustees) Calculation Agent in good faith and in a commercially reasonable manner, exceeding 1510% of the Last Reported Sale Price Value of the Common Stock a Unit of Reference Property on the day immediately Trading Day preceding the date of declaration of announcement for such distribution, then, in either case, the Company shall notify all Holders, the Trustee, the Exchange Agent (if other than the Trustee) and the Calculation Agent as soon as reasonably practicable after such distribution is publicly announced (or, in the case of any such separation of rights issued pursuant to a stockholder rights plan, as soon as reasonably practicable after the announcement that such separation or triggering event has occurred or will occur), but in no event later than five Business Days after the date of such public announcement; provided that if the Company sends such notice less than 50 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution and the Share Delivery Conditions are satisfied as of the date of such notice, subject to the immediately following proviso, except for exchanges of Called Notes during a Redemption Period and exchanges of Notes on or after February 15, 2028 (for which our prior Settlement Method election made pursuant to Section 14.02(a)(iii) shall control and govern), the Company shall be deemed to have elected to settle, and the Company shall be required to settle, all exchanges of Notes with an Exchange Date occurring during the period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the relevant issuer announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same in such notice; provided, further, however, that if the Share Delivery Conditions are no longer satisfied as of the date on which the Company is required to settle its Exchange Obligation with respect to any such exchange, the Company shall be deemed to have elected to settle, and the Company shall be required to settle, any such exchanges by Cash Settlement, notwithstanding its previous election (or deemed election) of Physical Settlement pursuant to the immediately preceding proviso. Once the Company has given such notice, Holders may surrender the all or any portion of their Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or and the date Parent announces relevant issuer’s announcement that such distribution will not take place, even if the Notes are not otherwise exchangeable at such time. For the purpose of this subsection (b)(ii), in determining whether any rights, options or warrants entitle the holders of Aurora Common Stock or other securities, as the case may be, then comprising Reference Property to subscribe for or purchase shares of Aurora Common Stock or such other securities at a price per share or per security that is less than such average of the Last Reported Sale Prices of Aurora Common Stock or such other securities, as the case may be, for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, there shall be taken into account the Fair Market Value of any consideration received by Aurora or the issuer of such other securities, as the case may be, for such rights, options or warrants and any amount payable on exercise or exchange thereof, such Fair Market Value to be determined by the Calculation Agent in good faith and in a commercially reasonable manner.
(iii) If (i) a transaction or event that constitutes a Fundamental Change occurs prior to the close of business on the Business Day immediately preceding February 15, 2028, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02 or (ii) if Aurora (or any issuer of Common Equity comprising the Reference Property issued as consideration for Aurora Common Stock (or other Common Equity comprising the Reference Property following a Share Exchange Event) pursuant to a prior Share Exchange Event) is a party to a Share Exchange Event (other than a Share Exchange Event that is solely for the purpose of changing Aurora’s (or such issuer’s) jurisdiction of organization that (x) does not constitute an Aurora Fundamental Change and (y) results in a reclassification, conversion or exchange of outstanding shares of Aurora Common Stock (or such issuer’s Common Equity) solely into shares of common stock of the surviving entity and such shares of common stock are included in the Reference Property for the Notes in lieu of Aurora Common Stock (or such issuer’s Common Equity)) that occurs prior to the close of business on the Business Day immediately preceding February 15, 2028 (each such Fundamental Change or Share Exchange Event, a “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for exchange at any time from or after the effective date for such Corporate Event until the earlier of (x)
(I) in the case of a Corporate Event described in clause (i) above (other than an Aurora Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase Date or (II) in the case of a Corporate Event described in clause (ii) above that does not constitute a Fundamental Change or a Corporate Event that is an Aurora Exempted Fundamental Change, 35 Trading Days after the effective date of such Corporate Event (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the Company gives notice of such Corporate Event) and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify Holders Holders, the Trustee, the Exchange Agent (if other than the Trustee) and the Calculation Agent in writing as promptly as practicable following the effective date of such Corporate Event, but in no event later than five Business Days after (x) the effective date of such Corporate Event (in the case of a Share Ownership Event or an Uber Fundamental Change) or (y) the public announcement of the effective date of such Corporate Event (in the case of any distribution referred other Corporate Event).
(iv) Prior to in either clause the close of business on the Business Day immediately preceding February 15, 2028, a Holder may surrender all or any portion of its Notes for exchange at any time during any calendar quarter commencing after the calendar quarter ending on September 30, 2025 (Aand only during such calendar quarter), if the Value of a Unit of Reference Property for at least 20 Trading Days (whether or not consecutive) or clause (B) above during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the resulting immediately preceding calendar quarter is greater than or equal to 130% of the Exchange Price in effect on each applicable Trading Day.
(v) If the Company calls any Notes for Optional Redemption pursuant to Article 16, then a Holder may surrender all or any portion of its Called Notes for exchange right no later at any time from, and including, the date of issuance of the Notice of Redemption with respect to such Called Notes until the close of business on the second Scheduled Trading Day immediately preceding the applicable Redemption Date unless the Company fails to pay the Redemption Price (in which case a Holder of Called Notes may exchange all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for) (such period, a “Redemption Period”). If the Company elects to redeem fewer than all of the 35th Business Day outstanding Notes pursuant to Article 16, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the Ex-Dividend close of business on the 44th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted by Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 nor more than 65 Business Days prior to the related Redemption Date, then prior to close of business on the 14th Business Day immediately before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption (and, as a result thereof, exchangeable in accordance with this Section 14.01(b)(v)), then such Holder or owner, as applicable, will be entitled to exchange such Note or beneficial interest, as applicable, at any time during the related Redemption Period, and each such exchange will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial interest will be deemed called for Optional Redemption solely for the purposes of such exchange (“Deemed Redemption”). If a Holder elects to exchange Called Notes during the related Redemption Period, the Company will, under certain circumstances, increase the Exchange Rate for such distribution.Called Notes pursuant to Section 14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16, Holders of the Notes that are not Called Notes shall not be entitled to exchange such Notes pursuant to this Section 14.01(b)(v) and shall not be entitled to an increase in the Exchange Rate on account of
Appears in 1 contract
Sources: Indenture (Uber Technologies, Inc)
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII14, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereofthereof (subject in all cases to the Representations of Purchasers)) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the scheduled Business Day immediately preceding July 1, 2022 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time during the period from, and including, July 1, 2022 to the close of business on the second Scheduled Trading Day immediately preceding February 15the Maturity Date, 2013 in each case, at a an initial exchange rate (the “Exchange Rate”) of 5.8569 6.571314.1835 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 14, the “Exchange Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Exchange Obligation”) under the circumstances and during the periods set forth below. On and after February 15, 2013, regardless of the conditions described in clause ).
(b) through (fi) below, upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior Prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date at an Exchange Rate July 1, 2022, a Holder may surrender all or any portion of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes.
(1) A Holder of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination and the Company does not then replace the Bid Solicitation Agent, including by acting as Bid Solicitation Agent, and such replacement Bid Solicitation Agent does not make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Exchange Privilege. (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11 hereof, and upon compliance with the provisions of this Article VIII15, a each Holder of Notes a Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 15.01(b), at any time prior to the close of business on the scheduled Trading Business Day immediately preceding February 15July 31, 2013 at a rate (the “Exchange Rate”) of 5.8569 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04) per $1,000 principal amount of Notes (the “Exchange Obligation”) 2023 under the circumstances and during the periods set forth below. On in Section 15.01(b), and after February 15, 2013, (ii) regardless of the conditions described in clause (b) through (f) belowSection 15.01(b), upon compliance with the provisions of this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount or an integral multiple thereof) of such Note at any time on or after July 31, 2023 and prior to the close of business on the scheduled Trading Business Day immediately preceding the Maturity Date Date, in each case, for one fully paid ERPS (with a paid-up value of $1,000) per $1,000 principal amount of Notes, which ERPS shall immediately be exchanged at an Exchange Rate initial exchange rate of 5.8569 71.3343 shares of Common Stock (subject to adjustment by the Company as provided in Section 8.04this Article 15, the “Exchange Rate”) per $1,000 principal amount ERPS (subject to, and in accordance with, the settlement provisions of NotesSection 15.02) (the “Exchange Obligation”).
(1b) A (i) Prior to the close of business on the Business Day immediately preceding July 31, 2023, a Holder may surrender all or any portion of Notes shall have the right, at such Holder’s option, to exchange its Notes prior to February 15, 2013, for exchange at any time during the five Business Day period immediately after any ten five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each day Trading Day of such the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such date Trading Day and the Exchange Rate on each such date, all as Trading Day. The Trading Prices shall be determined by the Trustee Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in the manner described in the immediately succeeding paragraphthis Indenture. The Trustee Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of the Notes unless requested by the Company to do so in writinghas requested such determination, and the Company shall have no obligation to make such request unless a Noteholder or Noteholders of at least (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000,000 aggregate 1,000 principal amount of Notes Notes) unless a Holder provides the Company with written notice that includes reasonable evidence that the Trading Price per $1,000 principal amount of the Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price at of the Common Stock on such time Trading Day and the then-applicable Exchange RateRate on such Trading Day, at which time the Company shall select three independent nationally recognized securities dealers instruct the Bid Solicitation Agent (eachif other than the Company) to determine, an “Independent Securities Dealer”), request that the Independent Securities Dealers provide a secondary market quotation for the Notes and provide such determination to or if the Company and the Trustee in writingis acting as Bid Solicitation Agent, and the Company shall instruct determine, the Independent Securities Dealers to provide a secondary market quotation for the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the Bid Solicitation Agent to obtain bids, or the Company gives such instruction to the Bid Solicitation Agent, and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the NoteholdersHolders, the Trustee and the Exchange Agent (if other than the Trustee). If If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price on such date of the Common Stock and the then-applicable Exchange RateRate for such date, the Company shall so notify the Noteholders.
(2) Any request by the Company to the Trustee for a determination of the Trading Price and whether the Trading Price condition set forth in the first sentence of the immediately preceding paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day of determination (as identified in such Certificate), the name of the Independent Securities Dealers providing the secondary market bid quotations, a statement certifying that that such dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary market bid quotations obtained from such Independent Securities Dealers (a copy of which will be attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such date. The Trustee shall be entitled to conclusively rely, without independent verification, on the quotations provided by the Company in making its determinations hereunder. On the basis of such quotations, the Trustee shall determine the Trading Price Holders of the Notes, the Trustee and provide such determination to the Company. Absent manifest error, Exchange Agent (if other than the Trustee’s determination of the Trading Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall have received a request from the Company for determination of the Trading Price for the Notes and the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any determination of the Trading Price of the Notes or whether the Trading Price condition has been met).
(c) A Holder of Notes shall have the right, at such Holder’s option, to exchange Notes during any calendar quarter after the quarter ended June 30, 2008, and only during such calendar quarter, if the Last Reported Sale Price for the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar quarter exceeds 130% of the Exchange Price (the “Exchange Trigger Price”) on such last Trading Day, which Exchange Price shall be subject to adjustment in accordance with this Article VIII. The Exchange Agent shall, on the Company’s behalf, determine at the beginning of each calendar quarter whether the Notes are exchangeable as a result of the price of the Common Stock as contemplated in the previous sentence and notify the Company and the Trustee.
(d) In the event that the Company has delivered a notice of redemption in accordance with Section 1104 of the Base Indenture and Section 3.03 of this Annex C of the Twelfth Supplemental Indenture to the Holders of Notes, a Holder of Notes may exchange Notes at any time prior to the close of business on the second Business Day immediately preceding the corresponding Redemption Date; provided, however, that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a Note may not exchange such Note until the Holder has withdrawn the Fundamental Change Repurchase Notice in accordance with the terms of the Note and this Annex C of the Twelfth Supplemental Indenture.
(e) (i) In the event that Parent or Company elects to:
(A) distribute to all or substantially all holders of Common Stock rights entitling them to purchase, for a period expiring within 60 days, shares of Common Stock at a price less than the Last Reported Sale Price of the Common Stock for the Trading Day immediately preceding the declaration date of such distribution; or
(B) distribute to all or substantially all holders of Common Stock, assets or debt securities of the Company or Parent or rights to purchase the Company’s or Parent’s securities, which distribution has a per share value (as determined by the Board of Trustees) exceeding 15% of the Last Reported Sale Price of the Common Stock on the day immediately preceding the date of declaration of such distribution, then, in either case, Holders may surrender the Notes for exchange at any time on and after the date that Parent provides notice to Holders referred to in the next sentence until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or the date Parent announces that such distribution will not take place. The Company shall notify Holders of any distribution referred to in either clause (A) or clause (B) above and of the resulting exchange right no later than the 35th Business Day prior to the Ex-Dividend Date for such distribution.
Appears in 1 contract
Sources: Indenture (Ensco PLC)