Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar day following the occurrence of a Repurchase Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice shall contain the following information: (1) a brief description of the Repurchase Event; (2) the repurchase date; (3) the CUSIP number(s) of the Note(s) subject to the repurchase right; (4) the date by which the repurchase right must be exercised; (5) the last date by which the election to require repurchase, if submitted, must be revoked; (6) the Repurchase Price and the Additional Repurchase Amount, if any; (7) a description of the procedure which a holder must follow to exercise a repurchase right; and (8) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern. (b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date. (c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for. (d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered. (e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date. (f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase. (g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Rockford Corp), Indenture (Rockford Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company Redemption Date shall have theretofore called occurred in connection with the Company's call for redemption of all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 15th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The City of New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase AmountPrice, if any;and
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and
(8) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 15th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased, repurchased and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase dateirrevocable.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid the Repurchase Price in cash to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, in the principal event the -------- ------- Repurchase Date shall occur prior to the opening of business on an Interest Payment Date and after the close of business on the corresponding Regular Record Date, the interest payable on such Interest Payment Date shall be payable to the Holder of such Notes Securities, or one or more predecessor Securities, registered as such on the relevant Regular Record Date as provided in Article Three and no accrued and unpaid interest shall be payable upon repurchase of such Securities.
(d) If any Security surrendered for repurchase shall not be so paid on the Repurchase Date, the Repurchase Price shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided forSecurity.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 2 contracts
Sources: Indenture (Bank Plus Corp), Indenture (Bank Plus Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on On or before the tenth thirtieth (10th30th) calendar day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the thirtieth (30th) day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.06, notice (the "Company “Repurchase Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall be responsible for preparing such Repurchase Notice and, in the event the Company shall deliver such notice to the Holder, the Company shall also deliver a copy of such notice of a repurchase right Repurchase Notice to the Trustee. The Company Each Repurchase Notice shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date, the Repurchase Price, and accrued and unpaid interest, if any, not included in the Repurchase Price, will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places that the notice of election to repurchase shall be delivered, and the form of such notice. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 13 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth thirtieth (35th30th) day (or such greater period as may be required by applicable law) after the Company date of the Repurchase Notice was mailed (i1) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii2) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note then in effect per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note without service chargeSecurity, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Company, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.13.
Appears in 2 contracts
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 2 contracts
Sources: Indenture (Bea Systems Inc), Indenture (Bea Systems Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 6% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 2 contracts
Sources: Indenture (Cirrus Logic Inc), Indenture (Cirrus Logic Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 15.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the “Company Notice”). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1i) a brief description of the Repurchase EventDate;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Repurchase Right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amountaccrued and unpaid interest, if any, and whether the Repurchase Price shall, at the option of the Company and in accordance with the provisions of this Article 11, be paid by the Company in (x) cash, (y) by delivery of shares of Common Stock or Acquiror Stock or (z) in a combination of cash and delivery of Common Stock or Acquiror Stock, as the case may be, in which case the portion of the Redemption Price that will be paid in cash and the portion that will be paid in shares of Common Stock or Acquiror Stock;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) v) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that all or any portion of the Repurchase Price shall be paid with shares of Common Stock or Acquiror Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock or Acquiror Stock, as the case may be, shall be issued, and
(ii) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock or Acquiror Stock or the applicable combination thereof, as provided above, for payment to the Holder on the repurchase date any Notes (Repurchase Date or, if shares of Common Stock or portions thereof) Acquiror Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by of interest on the Note Security, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On Any issuance of shares of Common Stock or Acquiror Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date, Date and the Company Person or Persons in whose name or names any certificate or certificates for shares of Common Stock or Acquiror Stock shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may be issuable upon such repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based deemed to have become on the principal amount Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company or the Acquiring Party, as the case may be, shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such Note, in proportion shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock or Acquiror Stock issued upon repurchase of any Security declared prior to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) No fractions of shares of Common Stock or Acquiror Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock or Acquiror Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock or Acquiror Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock or Acquiror Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock or Acquiror Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 2 contracts
Sources: Indenture (Nektar Therapeutics), Indenture (Nektar Therapeutics)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Securities and to the Notes a notice Trustee (the "“Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price and the Additional Repurchase Amount, if anyPrice;
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion Price then procedures for withdrawing a Change in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and Control Purchase Notice;
(vii) the place or places where Notes may such Securities are to be surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities. No failure Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, the Company shall cause a copy of the Company Notice to give be published in The Wall Street Journal or another daily newspaper of national circulation and will also post such notice on the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governCompany’s website.
(b) [Intentionally Omitted]
(c) To exercise a repurchase right, a holder shall Holder must deliver to the Trustee on or before at the office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York pursuant to Section 9.02, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date, (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase “Change in Control Purchase Notice"”), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Securities and (ii) surrender the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer Securities subject to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock Change in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided forControl Purchase Notice.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, Date the Company shall deposit with the Trustee or with a paying agent the Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.49.03) an amount of money sufficient to pay the Repurchase Price and Additional of the Securities that are to be repaid on the Repurchase AmountDate. On the Repurchase Date, the Trustee, a Paying Agent (or, if anythe Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in cash Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in respect of such Security, then such Security shall cease to be Outstanding for payment to the holder purposes of this Indenture on the repurchase dateRepurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(ge) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.83.08.
(f) If any Security (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Security shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Security and such Security shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(g) Any Security that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Security so surrendered that was not repurchased.
(h) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(i) [Intentionally Omitted]
(j) [Intentionally Omitted]
(k) [Intentionally Omitted]
(l) Notwithstanding anything to the contrary in this Section 11.02, the Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company’s obligation to offer to repurchase the Outstanding Securities following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Outstanding Securities by giving a notice containing the information set forth in clauses (i) through (x) of Section 11.02 (a) to the Holders of all Outstanding Securities and to the Trustee, (B) such Person repurchases all Outstanding Securities validly tendered and not withdrawn, and (C) such Person makes all payments with respect thereto. This Section 11.02(l) shall not relieve the Company of any of its obligations under this Indenture or any Security; provided, however, that if another Person makes the offer to repurchase Outstanding Securities as set forth in this Section, the Company shall not be obligated to give the Company Notice.
(m) Absent, and except to the extent of, the Trustee’s receipt of a Company Notice of a Change in Control, the Trustee shall not be under any duty to determine or monitor whether a Change in Control has occurred, from time to time.
Appears in 2 contracts
Sources: Indenture (Transwitch Corp /De), Indenture (Transwitch Corp /De)
Notices; Method of Exercising Repurchase Right, Etc. In the event that, pursuant to Section 15.1, the Company shall be required to commence an irrevocable and unconditional offer to purchase the Notes, the following procedures shall apply:
(a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient pursuant to redeem such Notes on the redemption date as set forth in Section 3.2Article III, on or before the tenth (10th) calendar 10th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give to all holders of record of the Notes a Holders written notice (the "Company NoticeCOMPANY NOTICE") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and,
(8) v) that on the Repurchase Date the Repurchase Price will become due and payable upon each such note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price then in effectPrice, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places where such Notes are to be surrendered for payment of the Repurchase Price and accrued interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, duly endorsed for transfer the Company shall pay or cause to be paid to the Company. Election of repurchase by a holder shall be revocable at any time prior Trustee or the Paying Agent the Repurchase Price in cash, together with accrued and unpaid interest to, but excluding, the repurchase date, by delivering written notice to that effect Repurchase Date payable with respect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase purchase right has been properly exercised. On the Repurchase Date and upon deposit of the Repurchase Price in cash with the Trustee or Paying Agent, then the Trustee or Paying Agent will make payment to the Noteholder on the Repurchase Date in the manner specified pursuant to Section 15.2.
(d) If any Note (or portion thereof) is surrendered for repurchase to be paid on the Repurchase Date, the principal amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Notes, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase datesurrendered that was not repurchased.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right Any Holder that has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee its written notice exercising its right to require the Company to repurchase its Notes upon a Change in Control shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Trustee prior to the close of business on such date. A Note in respect of which a Holder is exercising its option to require repurchase upon a Change in Control may be canceled converted into Common Stock in accordance with Article XIV only if such Holder withdraws its notice in accordance with the provisions of Section 2.8preceding sentence.
Appears in 2 contracts
Sources: Indenture (Dura Pharmaceuticals Inc/Ca), Indenture (Dura Pharmaceuticals Inc/Ca)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) the instructions a description of the procedure which a holder Holder must follow to exercise a repurchase right; ,
(5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, and
(8) 6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on 5th day prior to the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; PROVIDED, then HOWEVER, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the Holders of the Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate per annum borne by the Note such Security, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to at the office or agency of the Company and accompanied by appropriate evidence designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share shall be determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.10.
Appears in 2 contracts
Sources: Indenture (Interim Services Inc), Indenture (Interim Services Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless In the case of a Change in Control or a Termination of Trading, unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control or a Termination of Trading, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 13.2, of the occurrence of the Repurchase Event Change of Control or a Termination of Trading and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Fundamental Change Company Notice"). In the case of an Optional Repurchase Right, 20 Business Days prior to an Optional Repurchase Date the Company, or, at the written request and expense of the Company fifteen days prior to such date, the Trustee, shall give to all Holders of Securities a notice, in the manner provided in Section 13.2, of the Optional Repurchase Right (the "Optional Repurchase Right Company Notice" and, together with the Fundamental Change Company Notice, each a "Company Notice"). The Company shall also deliver a copy of such notice Company Notice of a repurchase right Repurchase Right to the Trustee. The Each Company Notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the applicable Repurchase EventDate;
(2) the repurchase datedate by which the Fundamental Change Repurchase Right or the Optional Repurchase Right must be exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase rightRepurchase Price and accrued and unpaid interest (including Additional Amounts, if any), if any;
(4) whether the date Repurchase Price shall be paid by which the repurchase right must be exercisedCompany in cash or by delivery of ADRs, or a combination thereof, specifying the percentage of each;
(5) if the last date by which Repurchase Price will be paid in ADRs, the election to require repurchase, if submitted, must be revokedmethod for calculating the average Trading Price of the ADRs;
(6) a description of the procedure which a Holder must follow to exercise its Repurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and the Additional Repurchase Amountaccrued and unpaid interest, if any;
(7) a description of that on the procedure which a holder must follow applicable Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable in cash upon each such Security designated by the Holder to exercise a repurchase right; andbe repurchased, and that interest thereon shall cease to accrue on and after said date;
(8) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(9) the place or places where such Securities, together with the Option to Elect Repayment certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightits Optional Repurchase Right or its Fundamental Change Repurchase Right, as the case may be, a holder Holder shall deliver to the Trustee on or before prior to the close of business two Business Days prior to the applicable Optional Repurchase Date in the case of an Optional Repurchase Right, or prior to or on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed in the case of a Change in Control or a Termination of Trading:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right applicable Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in whole or in part in ADRs, the name or names (iiwith addresses) in which the certificate or certificates for the ADRs shall be issued;
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised; and
(3) in the event the Company elects to pay the Repurchase Price to be paid as of such Repurchase Date, duly endorsed for transfer in whole or in part, in ADRs but such portion of the Repurchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in ADRs is not satisfied prior to the Companyclose of business on such Repurchase Date, as set forth in Section 11.2, whether such Holder elects (i) to withdraw such Repurchase Notice as to some or all of the Securities to which such Repurchase Notice relates (stating the Principal Amount at Maturity and certificate numbers of the Securities as to which such withdrawal shall relate), or (ii) to receive cash in respect of the entire Repurchase Price for all Securities (or portions thereof) to which such Repurchase Notice relates. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or ADRs, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if ADRs are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) ADRs until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of ADRs in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date, Date and the Company Person or Persons in whose name or names any certificate or certificates representing the ADRs shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may be issuable upon such repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based deemed to have become on the principal amount Repurchase Date the holder or holders of record of the ADRs represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Guarantor shall be closed shall constitute the Person or Persons in whose name or names the ADRs are to be issued as the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such Note, in proportion stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any ADRs issued upon repurchase of any Security declared prior to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) No fractions of shares of ADRs shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in ADRs, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of ADRs which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the ADRs as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates representing ADRs on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates representing ADRs in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.17.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase Designated Event, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of the Notes a Securities, notice (the "Company Designated Event Notice") in the form as prepared by the Company of the occurrence of the Repurchase Designated Event and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such Designated Event Notice to Holders, it shall also deliver a copy of give such notice of a repurchase right Designated Event Notice to the Trustee. The Company Trustee shall not be charged with notice or knowledge of a Designated Event until it shall have received a copy of such Designated Event Notice. Each Designated Event Notice shall contain describe such Designated Event, shall state that as a result of the following informationoccurrence of such Designated Event the Holder has the right to require the Company to repurchase the Holder's Securities in whole or in part and shall state:
(1i) a brief description of the Designated Event Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 3.14(b),
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Designated Event Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Designated Event Repurchase Price and accrued and unpaid interest, if any, to, but excluding, the Designated Event Repurchase Date,
(8) v) that on the Designated Event Repurchase Date the Designated Event Repurchase Price, and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased (unless such Holder exercises its right to convert such Security pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said date with respect to any Security designated by the Holder to be repurchased,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the notice described in Section 3.14(b) shall be delivered, and the form of such notice. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightright following a Designated Event, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the Company date of the Designated Event Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the a "Designated Event Repurchase Exercise Notice"), which Repurchase Notice notice shall set forth the name of the holderHolder, the certificate number of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be a Principal Amount of $1,000 or an integral multiple thereof)), and the name of the Notes Person in which the portion thereof to remain outstanding after such repurchase is to be repurchased, registered and a statement that an election to exercise the repurchase right pursuant to this Section 3.14(b) is being made thereby, thereby with respect to the Securities so specified for repurchase in such notice and (ii) delivery or book-entry transfer of the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer Securities to the Company. Election of repurchase by a holder shall be revocable Paying Agent at any time prior toafter delivery of the applicable Designated Event Notice (together with all necessary endorsements) at the office of the Paying Agent, but excluding, such delivery being a condition to receipt by the repurchase date, Holder of the Designated Event Repurchase Price therefor; provided that such Designated Event Repurchase Price shall be so paid pursuant to this Section 3.14 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Designated Event Repurchase Exercise Notice. Securities in respect of which a Designated Event Repurchase Exercise Notice has been given by delivering the Holder thereof may not be converted pursuant to Article X hereof on or after the date of the delivery of such Designated Event Repurchase Exercise Notice unless such Designated Event Repurchase Exercise Notice has first been validly withdrawn. A Designated Event Repurchase Exercise Notice may be withdrawn by means of a written notice to that effect of withdrawal delivered to the Trustee office of the Paying Agent at any time prior to the close of business on the Business Day prior immediately preceding the Designated Event Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Security in respect of which such notice of withdrawal is being submitted is represented by a Global Security,
(2) the Principal Amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains subject to the repurchase dateoriginal Designated Event Repurchase Exercise Notice and which has been or will be delivered for purchase by the Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Exercise Notice or written notice of withdrawal thereof.
(c) If the Holder of a Security exercises a repurchase right in accordance with this Section, the Company fails shall, prior to repurchase 10:00 a.m. (New York City time) on the repurchase date any Notes Business Day following the Designated Event Repurchase Date, deposit with the Paying Agent (or, if the Company or portions thereofa Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) the Designated Event Repurchase Price in cash (in immediately available funds if deposited on such Business Day) for payment to such Holder together with accrued and unpaid interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to the Securities as to which such Holder has exercised the repurchase right has been properly exercisedright; provided, then however, that installments of interest due on or prior to the Designated Event Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article XI of this Indenture.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Designated Event Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Designated Event Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for4.50% per annum.
(de) Any Note that With respect to any Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed bypart, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or prior to 1:00 p.m., New York City time on the Repurchase Date, Any purchase by the Company contemplated pursuant to the provisions of this Section shall deposit with be consummated by the Trustee or with a paying agent delivery of the consideration to be received by the Holder promptly following the later of (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4i) the Designated Event Repurchase Price Date and Additional Repurchase Amount, if any, in cash for payment to (ii) the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all time of the Notes (book-entry transfer or portions thereof) as to which delivery of the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseSecurity.
(g) All Notes delivered for repurchase Subject to Section 8.02, the Paying Agent shall be delivered return to the Trustee Company any cash that remains unclaimed, together with interest, if any, thereon, held by it for the payment of the Designated Event Repurchase Price; provided that to be canceled the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.14(c) exceeds the aggregate Designated Event Repurchase Price of the Securities or portions thereof which the Company is obligated to purchase as of the Designated Event Repurchase Date then, unless otherwise agreed in accordance writing with the provisions of Section 2.8Company, promptly after the Business Day following the Designated Event Repurchase Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon.
Appears in 1 contract
Sources: Indenture (Avatar Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30/th/ day following after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30/th/ day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the accrued and unpaid interest (including Additional Repurchase AmountAmounts, if any), if any;
(74) whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock;
(5) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andits Repurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 6) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(7) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(8) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment --------- of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightits Repurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued; and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any stock certificate or stock certificates representing shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting stock certificate or stock certificates representing such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of stock certificates representing shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such stock certificates or for any tax or duty in respect of the issuance or delivery of such stock certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of stock certificates representing shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15.
Appears in 1 contract
Sources: Indenture (Curagen Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Reserved.
(b) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Notes, on or before the tenth fifteenth (10th15th) calendar day following after the occurrence of a Repurchase Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the TrusteeTrustee and cause a copy of such Company Notice, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase EventEvent that occurred;
(2) the repurchase dateEvent Repurchase Date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
(54) the last date by which the election to require repurchase, if submitted, must be revoked;
(65) the Repurchase Event Price and whether the Additional Repurchase AmountEvent Price shall be payable in cash or Common Stock and, if anypayable in Common Stock, the method of calculating the amount of the Common Stock to be delivered upon the repurchase as provided in Section 16.3(a);
(76) a description of the procedure which a holder must follow to exercise a repurchase right; and;
(8) 7) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion; and
(8) the CUSIP numbers of the Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(bc) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed delivered (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Event Price shall be paid in shares of Common Stock, the name or names (with addresses) in 77 which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase dateEvent Repurchase Date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase dateEvent Repurchase Date.
(cd) If the Company fails to repurchase on the repurchase date Event Repurchase Date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Event Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(ef) On or prior to 1:00 p.m., New York City time on the Event Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Event Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company Event Repurchase Date; provided that if payment is unable to repurchase be made in cash, such cash payment is made on the repurchase date all Event Repurchase Date it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m., New York City time, on such date; provided further that if the Repurchase Event Price is to be paid in shares of Common Stock, such shares of Common Stock are to be paid as promptly after the Notes (or portions thereof) Event Repurchase Date as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepracticable.
(g) Any issuance of shares of Common Stock in respect of the Repurchase Event Price shall be deemed to have been effected immediately prior to the close of business on the Event Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Event Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Event Repurchase Date.
(h) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same holder and the Repurchase Event Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price of the Common Stock on the Trading Day immediately preceding the Event Repurchase Date.
(i) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(j) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Alkermes Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, (i) on or before the tenth 20th Business Day prior to June 1, 2004 or June 1, 2006, if the Company intends to pay the Repurchase Price on such Repurchase Date by delivery of Ordinary Shares, or (10thii) calendar on or before the 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany within the applicable time period, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in of (i) the form as prepared Company's intention of paying the Repurchase Price by the Company delivery of Ordinary Shares or (ii) the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver (i) a copy of such notice of a repurchase right to the TrusteeTrustee and (ii) make a public announcement thereof by release made to Dow Jones & Company, Inc. ▇▇ ▇▇oomberg Business News, or publish the information on its Web site or through such other public means as it may use at that time. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase AmountCompany in cash or by delivery of Ordinary Shares or any combination thereof, if any;specifying the percentage of each,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Security the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on Trustee, (i) any time from the 20th Business Day prior to June 1, 2004 or before June 1, 2006 to the close of business on the thirty-fifth last day prior to June 1, 2004 or June 1, 2006 or (35thii) in the event of a Change of Control on or before the 30th day after the date of the Company Notice was mailed (iA) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in Ordinary Shares, the name or names (with addresses) in which the certificate or certificates for Ordinary Shares shall be issued and, in the event the Company elects to pay the Repurchase Price in Ordinary Shares, in whole or in part, but the Repurchase Price is ultimately to be paid to the Holder entirely in cash because any of the conditions to payment of the Repurchase Price or portion of the Repurchase Price in Ordinary Shares is not satisfied prior to the close of business on the last day prior to the Repurchase Date, whether the Holder elects to (a) withdraw the repurchase notice as to some or all of the Securities to which it relates, or (b) receive cash in respect of the entire Repurchase Price for all Securities or portions of Securities subject to the repurchase notice (if the Holder fails to indicate the Holder's choice with respect to the election, the Holder will be deemed to have elected to receive cash in respect of the entire Repurchase Price for all Securities subject to the repurchase notice in these circumstances), and (iiB) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer . A Holder may withdraw any repurchase notice by a written notice of withdrawal delivered to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee Paying Agent prior to the close of business on the Business Day last day prior to the Repurchase Date. The notice of withdrawal must state: (i) the principal amount of the withdrawn Securities; (ii) if certificated Securities have been issued, the certificate numbers of the withdrawn Securities, or if not certificated, the notice must comply with appropriate DTC procedures; and (iii) the principal amount, if any, which remains subject to the repurchase datenotice.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or Ordinary Shares, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if Ordinary Shares are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 2.00% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Ordinary Shares until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of Ordinary Shares in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Ordinary Shares shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Ordinary Shares issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Ordinary Shares, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional Ordinary Shares which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of an Ordinary Share is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Ordinary Shares on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for Ordinary Shares on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for Ordinary Shares in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If Ordinary Shares to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner Ordinary Shares issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Amdocs LTD)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient Securities pursuant to redeem such Notes on the redemption date as set forth in Section 3.2Article 11, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of Holders in the Notes manner provided in Section 11.5 a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right to be published in a newspaper of general circulation in Los Angeles, California and the Borough of Manhattan, The City of New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) 5) the Conversion Price conversion price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. In addition, at least two Trading Days preceding the Repurchase Date, the Company shall cause to be published, in a newspaper of general circulation in Los Angeles, California and the Borough of Manhattan, The City of New York, a notice specifying whether the Repurchase Price will be payable in cash or in shares of Common Stock. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excludingexcept that the right of the holder to convert the Securities with respect to which the repurchase right is being exercised shall continue until the close of business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the repurchase dateCompany shall pay or cause to be paid the Repurchase Price in cash or shares of Common Stock, by delivering written notice to that effect as provided above, to the Trustee Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been exercised; provided, however, that installments of interest whose Stated -------- ------- Maturity is on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.7.
(d) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Business Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the Holder or Holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the recordholder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon conversion of any Security.
(e) No fractions of shares or scrip representing fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall make payment in lieu thereof in an amount of United States dollars equal to the value of such fraction computed on the basis of the Closing Price of the Common Stock on the last Trading Day prior to the repurchase dateRepurchase Date.
(cf) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that -------- ------- the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issue or delivery shall be made unless and until the Person requesting such issue or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(g) If any shares of Common Stock to be issued upon repurchase of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued or delivered upon repurchase, the Company fails covenants that it will in good faith and as expeditiously as Possible endeavor to secure such registration or approval, as the case may be; provided, however, that nothing in this Section -------- ------- shall be deemed to affect in any way the obligations of the Company to repurchase Securities as provided in this Article and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date, the Repurchase Price shall be paid in cash.
(h) The Company covenants that all shares of Common Stock which may be issued upon repurchase of Securities will upon issue be duly and validly issued and fully paid and non-assessable.
(i) If any Security surrendered for repurchase shall not be so paid on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercisedRepurchase Date, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security shall have been paid or duly provided for.
(dj) Any Note that Security which is to be repurchased only in part shall be surrendered at any office or agency of the Company designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee duly endorsed for so requires, due endorsement by, or a written instrument of transfer to the Company and accompanied by appropriate evidence of genuineness and authority in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or Notes, containing identical terms and conditionsSecurities, of any authorized denomination as requested by such holder Holder, in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company or, at the written request in a Company Order and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Fundamental Change Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Fundamental Change Company Notice to the Trustee. The If such notice is to be given by the Trustee, the Company shall deliver, on or before the fifth day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the information to be included in such notice including the information set forth below. Each Fundamental Change Company Notice shall contain the following informationstate:
(1i) a brief description of the Fundamental Change Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Fundamental Change Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Fundamental Change Repurchase Price and accrued interest (including Additional Interest, if any), if any to the Fundamental Change Repurchase Date,
(8) v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price, and accrued interest, if any (including Additional Interest, if any), to, but excluding, the Fundamental Change Repurchase Date will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the aggregate principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after Business Day prior to the Company Notice was mailed Fundamental Change Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the aggregate principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateFundamental Change Repurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee before 10:30 a.m. (New York City time) on the repurchase date any Notes Fundamental Change Repurchase Date the Fundamental Change Repurchase Price in cash, as provided above, for payment to the Holder on the Fundamental Change Repurchase Date, together with accrued and unpaid interest (or portions thereofincluding Additional Interest, if any) to, but excluding, the Fundamental Change Repurchase Date, payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the principal Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Notes Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, the aggregate principal amount of such Security (or portion thereof, as the case may be), shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Fundamental Change Repurchase Date at the rate borne by the Note of 2-3/8% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and upon its actual receipt by a Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security pursuant to such Company Order without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g6) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 3.9.
(7) To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 14.2(3) exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date together with accrued but unpaid interest (including Additional Interest, if any) thereon, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Fundamental Change Repurchase Date the Trustee shall return any such excess to the Company together with interest, if any, thereon.
(8) When complying with the provisions of Section 2.814.1 hereof (so long as such offer or repurchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or repurchase), the Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply in all material respects with all federal and state securities laws so as to permit the rights and obligations under Section 14.1 to be exercised in the time and in the manner specified in Section 14.1.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 15th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Company's expense, shall mail give notice to all holders of record Holders of the Notes a notice Securities (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such notice of a repurchase right, the Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price then in effectand accrued interest, if any;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the conversion price and any adjustments thereto, the date on which the right to convert the principal amount of the Notes to be repurchased Securities will terminate and the place or places where Notes such Securities may be surrendered for conversion. No ;
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities; and
(xi) that no failure of the Company to give the foregoing notices notice or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on Paying Agent or before an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed (i) Repurchase Date written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (i) the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made therebythereby pursuant to the applicable provisions of the Securities, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes certificate numbers of the Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Paying Agent the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes Repurchase Date, payable with respect to the Securities (or portions portion thereof) as to which the repurchase right has been properly exercised; provided, then however, that such Security for which a repurchase right has been exercised has been delivered to the Paying Agent at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Repurchase Price for such Security shall be made promptly following the later of the Business Day following the Repurchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Repurchase Price on the Business Day following the Repurchase Date, then, immediately after the Repurchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Repurchase Price upon delivery of such Security).
(d) On or prior to the Repurchase Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section ? of the Indenture) an amount of money sufficient to pay the Repurchase Price of the Securities which are to be repaid on the Repurchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of % per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Article 13 herein until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(df) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes delivered for repurchase shall be Any Holder that has delivered to the Trustee a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent prior to the close of business on such date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the notice of exercise of a repurchase right. A Security in respect of which a Holder has exercised its option to require repurchase upon a Change in Control may thereafter be canceled converted into Common Stock only if such Holder withdraws its notice in accordance with the provisions preceding sentence.
(h) Any issuance of Section 2.8shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor in cash at the current market value thereof to the Holder of Securities. For these purposes, the current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the Repurchase Date.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) [intentionally omitted]
(b) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Notes, on or before the tenth (10th) calendar day following after the occurrence of a Repurchase EventFundamental Change, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the TrusteeTrustee and cause a copy of such Company Notice, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase Event;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(42) the date by which the repurchase right must be exercised;
(53) the last date by which the election to require repurchase, if submitted, must be revoked;
(64) that the Repurchase Price and the Additional Repurchase Amount, if anyshall be payable in cash;
(75) a description of the procedure which a holder must follow to exercise a repurchase right; and;
(8) 6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion; and
(7) the CUSIP numbers of the Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(bc) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirtytwenty-fifth (35th25th) calendar day after the Company Notice was mailed delivered (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, thereby and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(cd) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(ef) On or prior to 1:00 p.m., New York City time on the Repurchase Daterepurchase date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company ; provided that such cash payment is unable to repurchase made on the repurchase date all of it must be received by the Notes (Trustee or portions thereof) paying agent, as to which the repurchase right has been properly exercisedcase may be, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchaseby 10:00 a.m., based New York City time, on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasedate.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Sepracor Inc /De/)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, together with all coupons appertaining thereto, if any, maturing after the Repurchase Date, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities, together with all unmatured coupons appertaining thereto, may be surrendered for conversion, and
(7) the place or places that the certificate required by Section 2.2 shall be delivered, and the form of such certificate. In addition, at least two Business Days preceding the Repurchase Date, the Company shall give to all Holders of the Securities and coupons, in the manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or shares of common stock and shall deliver a copy of such notice to the Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Registered Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of common stock, the name or names (with addresses) in which the certificate or certificates for shares of common stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to together with all coupons, if any, appertaining thereto maturing after the Company. Election of repurchase by a holder Repurchase Date; provided, however, that Bearer Securities shall be revocable at any time prior todelivered only to an office of a Paying Agent located outside the United States except in the limited circumstances described in Section 10.2. Such written notice shall be irrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business second Trading Day prior to preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee or the Paying Agent in London, England, the Repurchase Price in cash or shares of common stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of common stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Registered Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date and, in the case of Bearer Securities, to the holder of the coupon with respect thereto, in each case according to the terms and provisions of Article Three; and provided, further, that Bearer Securities and coupons shall be so payable only at an office or agency outside the United States (except as otherwise provided in the form of Bearer Security set forth in Section 2.2(a)).
(d) If any Bearer Security surrendered for repurchase shall not be accompanied by all appurtenant coupons maturing after the Repurchase Date, such Security may be paid after deducting from the Repurchase Price an amount equal to the face amount of all such missing coupons or the surrender of such missing coupons or coupon may be waived by the Company and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Repurchase Price, if any, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside of the United States (except as otherwise provided in the form of Bearer Security set forth in Section 2.2(a)).
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4-1/2% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for. If payment is made or duly provided for on the Repurchase Date, from and after the Repurchase Date the Securities surrendered for repurchase shall cease to accrue interest and coupons appertaining to any Bearer Security surrendered for repurchase shall, except as provided in Sections 14.2(c) and (d), be void.
(df) Any Note that Registered Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Registered Security without service charge, a new Note Registered Security or NotesRegistered Securities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Registered Security so surrendered.
(eg) On or Any issuance of shares of common stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m.the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, New York City time however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the recordholder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any common stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(h) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of common stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of common stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of common stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(i) Any issuance and delivery of certificates for shares of common stock on repurchase of Securities shall be made without charge to the Holder of Securities being repur- chased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(j) If any shares of Common Stock to be issued upon repurchase of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued or delivered upon repurchase, the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be; provided, however, that nothing in this Section shall be deemed to affect in any way the obligations of the Company to repurchase Securities as provided in this Article and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, shall be paid in cash for payment to the holder on the repurchase datecash.
(fk) If the The Company is unable to covenants that all shares of Common Stock which may be issued upon repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall Securities will upon issue be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseduly and validly issued and fully paid and non-assessable.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (United Waste Systems Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any, to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) calendar day following within 20 days after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany within 20 days after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amountaccrued and unpaid interest, if any;
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Notes are to be surrendered for payment of the Repurchase Price, accrued and unpaid interest and Liquidated Damages, if any;
(8) 5) that on the Repurchase Date the Repurchase Price, accrued and unpaid interest and Liquidated Damages, if any, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert Notes terminates and that accrued and unpaid interest on the principal Notes is forfeited upon conversion;
(7) the amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion,
(8) if applicable, that no Holder shall have a Repurchase Right upon a Change of Control unless prior to any payment of the Repurchase Price on the Repurchase Date the Company has made any applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in connection with such change of control offers, and
(9) the place or places where such Notes, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Radisys Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Securities and to the Notes a notice Trustee (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion Price then procedures for withdrawing a Change in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and Control Purchase Notice;
(vii) the place or places where Notes may such Securities are to be surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities. No failure Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, the Company shall cause a copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right, a holder shall Holder must deliver to the Trustee on or before a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date, (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Securities and (ii) surrender the Notes Securities subject to the Change in Control Purchase Notice.
(d) Unless the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock, on or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the repurchase right Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excludingacting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business shall not have been repurchased on the Business Day prior to following the repurchase date.
(c) If Repurchase Date, the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal Repurchase Price in respect of such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Business Day following the Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of Repurchase Price and any such Note accrued interest shall have been paid or duly provided for.
(df) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to or any such Paying Agent (or if the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed byis acting as its own Paying Agent, the holder thereof (or his attorney duly authorized in writing), Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes Any Holder that has delivered for repurchase a Change in Control Purchase Notice shall be delivered have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Business Day immediately preceding the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be canceled converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the provisions preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Common Stock is valued for purposes of Section 2.811.01.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
(k) Notwithstanding anything to the contrary in this Section 11.03, the Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Outstanding Securities following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Outstanding Securities by giving a notice containing the information set forth in clauses (i) through (x) of Section 11.03(a) to the Holders of all Outstanding Securities and to the Trustee, (B) such Person repurchases all Outstanding Securities validly tendered and not withdrawn, and (C) such Person makes all payments with respect thereto. This Section 11.03(k) shall not relieve the Company of any of its obligations under this Indenture or any Security; provided, however, that if another Person makes the offer to repurchase Outstanding Securities as set forth in this Section, the Company shall not be obligated to give the Company Notice.
Appears in 1 contract
Sources: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase Repurchase Date or, if shares of Common Stock are to be paid, on the date any Notes (or portions thereof) that is 45 days after the date of the Company's Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Security Registrar or transfer agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Abx Air Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities and to the Notes a Trustee, in the manner provided in Section 1.6, notice (the "“Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest,
(8) v) that on the Repurchase Date the Repurchase Price will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon will cease to accrue on and after such date,
(vi) the Conversion Price Rate then in effect, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date; provided, however, that installments of interest that mature on or prior to the repurchase dateRepurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, on the date that is not more than 45 days after the date of the Company Notice.
(c4) If the Company fails to any Security (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes Repurchase Date the principal amount of such Security (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 0.50% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided forpaid.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g6) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 3.9.
(7) The Company will comply with the provisions of Section 2.8Exchange Act and the rules and regulations promulgated under the Exchange Act, to the extent applicable, in connection with the Company Notice.
Appears in 1 contract
Sources: Indenture (Solectron Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Securities, on or before the tenth (10th) calendar 25th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Company's expense, shall mail give notice to all holders Holders of record of the Notes a notice Securities (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such notice of a repurchase right, the Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1) a brief description the date of such Change in Control and, briefly, the Repurchase Event;events causing such Change in Control; 104
(2) the repurchase datedate by which the Change in Control Purchase Notice (as defined below) must be delivered;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase rightChange in Control Purchase Date;
(4) the date by which the repurchase right must be exercisedChange in Control Purchase Price;
(5) the last date by which place or places where such Securities are to be surrendered for payment of the election to require repurchaseChange in Control Purchase Price and accrued interest, if submitted, must be revokedany;
(6) the Repurchase Conversion Price and any adjustments thereto, the Additional Repurchase Amount, if anydate on which the right to convert the Securities will terminate and the places where such Securities may be surrendered for conversion;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right;
(8) the procedures for withdrawing a Change in Control Purchase Notice;
(9) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities; and
(8) the Conversion Price then in effect10) briefly, the date on which the right to convert the principal amount conversion rights of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversionHolders of Securities. No failure of the Company to give the foregoing notices notice or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on Paying Agent or before an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed (i) Change in Control Purchase Date written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (i) the name of the holderHolder, (ii) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (iii) the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be 105 registered) and (iv) a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer thereby pursuant to the Company. Election applicable provisions of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase dateSecurities.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Paying Agent the Change in Control Purchase Price in cash, for payment to the Holder on the repurchase date any Notes Change in Control Purchase Date, payable with respect to the Securities (or portions portion thereof) as to which the repurchase right has been properly exercised; provided, then however, that such Security for which a repurchase right has been exercised has been delivered to the Paying Agent (together with all necessary endorsements) at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Change in Control Purchase Price for such Security shall be made promptly following the later of the Business Day following the Change in Control Purchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Change in Control Purchase Price on the Business Day following the Change in Control Purchase Date, then, immediately after the Change in Control Purchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Change in Control Purchase Price upon delivery of such Security). Securities in respect of which a Change in Control Purchase Notice has been given by the Holder thereof may not be converted into shares of Common Stock on or after the date of the delivery of such Change in Control Purchase Notice, unless such Change in Control Purchase Notice has first been validly withdrawn as specified in Section 14.2(g).
(d) On or prior to the Change in Control Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 6.6 hereof) an amount of money sufficient to pay the Change in Control Purchase Price of the Securities which are to be repaid on the Change in Control Purchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Change in Control Purchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Change in Control Purchase Date at the rate borne by the Note of 4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Article XIII herein until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(df) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes delivered for repurchase shall be Any Holder that has delivered to the Trustee a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent prior to the close of business on such date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the notice of exercise of a repurchase right. A Security in respect of which a Holder has exercised its option to require repurchase upon a Change in Control may thereafter be canceled converted into Common Stock only if such Holder withdraws its notice in accordance with the provisions preceding sentence.
(h) There shall be no purchase of any Securities pursuant to Section 2.814.1 if there has occurred (or on or after the giving, by the Holders of such Securities, of the required Change in Control Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Change in Control Purchase Price with respect to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Change in Control Purchase Price with respect to such Securities) in which case, upon such return, the Change in Control Purchase Notice with respect thereto shall be deemed to have been withdrawn.
Appears in 1 contract
Sources: Indenture (Commscope Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase Event, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Notes and to the Notes a notice Trustee (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price and the Additional Repurchase Amount, if anyPrice;
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right;
(vi) the procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Notes are to be surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Notes;
(ix) the Conversion Consideration and any adjustments thereto; and
(8) x) that Holders who want to convert Notes must satisfy the Conversion Price then requirements set forth in effectthe Notes. Promptly after giving the Company Notice to the Holders of Outstanding Notes and to the Trustee, the date Company shall cause a copy of the Company Notice to be published in The Wall Street Journal or another daily newspaper of national circulation and will also post such notice on the Company's website.
(b) [Intentionally Omitted]
(c) To exercise a repurchase right, a Holder must deliver to the Trustee or at the office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York pursuant to Section 9.02, prior to the close of business on or before the Repurchase Date, (i) written notice of the Holder's exercise of such right (the "Change in Control Purchase Notice"), which notice shall set forth (A) the name of the Holder, (B) the certificate numbers of the Notes with respect to which the repurchase right to convert is being exercised, (C) the principal amount of the Notes to be repurchased will terminate and (and, if any Note is to be repurchased in part, the place or places where Notes may be surrendered for conversion. No failure portion of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Notes and (ii) surrender the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer subject to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock Change in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided forControl Purchase Notice.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, Date the Company shall deposit with the Trustee or with a paying agent the Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.49.03) an amount of money sufficient to pay the Repurchase Price and Additional of the Notes that are to be repaid on the Repurchase AmountDate. On the Repurchase Date, the Trustee, a Paying Agent (or, if anythe Company is acting as its own Paying Agent, in cash for payment the Company) shall repurchase all such Notes validly tendered prior to the holder on the repurchase such date.
(fe) If In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Note with respect to which such Change in Control Purchase Notice relates, then so long as the Trustee or the Paying Agent holds (or, if the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) acting as to which the repurchase right has been properly exercisedits own Paying Agent, the aggregate amount of Notes Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount Repurchase Price in respect of such Note, in proportion then such Note shall cease to be Outstanding for the aggregate amount purposes of Notes surrendered for repurchasethis Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(gf) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.83.08.
(g) If any Note (or portion thereof) surrendered for repurchase shall not have been repurchased on the Business Day following the Repurchase Date, the Repurchase Price in respect of such Note shall, until paid, bear interest from the Business Day following the Repurchase Date at the rate borne by the Note and such Note shall remain convertible into Common Stock until the Repurchase Price and any such accrued interest shall have been paid or duly provided for.
(h) Any Note that is to be repurchased only in part shall be surrendered to the Trustee or any such Paying Agent (or if the Company is acting as its own Paying Agent, the Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the portion of the principal of the Note so surrendered that was not repurchased.
(i) Any Holder that has delivered a Change in Control Purchase Notice shall have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Notes as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Note in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(j) Notwithstanding anything to the contrary in this Section 11.02, the Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Outstanding Notes following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Outstanding Notes by giving a notice containing the information set forth in clauses (i) through (x) of Section 11.02
(a) to the Holders of all Outstanding Notes and to the Trustee, (B) such Person repurchases all Outstanding Notes validly tendered and not withdrawn, and (C) such Person makes all payments with respect thereto. This Section 11.02(j) shall not relieve the Company of any of its obligations under this Indenture or any Note; provided, however, that if another Person makes the offer to repurchase Outstanding Notes as set forth in this Section, the Company shall not be obligated to give the Company Notice.
(k) Absent, and except to the extent of, the Trustee's receipt of a Company Notice of a Change in Control, the Trustee shall not be under any duty to determine or monitor whether a Change in Control has occurred, from time to time.
Appears in 1 contract
Sources: Indenture (Transwitch Corp /De)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 15th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, on or before the tenth (10th) day after receipt of such request, the Trustee, at the Company's expense, shall mail give notice to all holders of record Holders of the Notes a notice Securities (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such notice of a repurchase right, the Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion procedures for withdrawing a Change in Control Purchase Notice;
(vii) the place or places where such Securities are to be surrendered for payment of the Repurchase Price then in effectand accrued interest, if any;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the conversion price and any adjustments thereto, the date on which the right to convert the principal amount of the Notes to be repurchased Securities will terminate and the place or places where Notes such Securities may be surrendered for conversion. No ;
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities; and
(xi) that no failure of the Company to give the foregoing notices notice or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on Paying Agent or before an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed (i) Repurchase Date written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (i) the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made therebythereby pursuant to the applicable provisions of the Securities, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes certificate numbers of the Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Paying Agent the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes Repurchase Date or, if shares of Common Stock are to be issued, with respect to the Securities (or portions portion thereof) as to which the repurchase right has been properly exercised; provided, then however, that such Security for which a repurchase right has been exercised has been delivered to the Paying Agent at any time after the notice of exercise of a repurchase right shall have been given. Payment of the Repurchase Price for such Security or, if shares of Common Stock are to be issued, shall be made promptly following the later of the Business Day following the Repurchase Date and time of delivery of the Security. If the Paying Agent holds money sufficient to pay the Repurchase Price on the Business Day following the Repurchase Date, then, immediately after the Repurchase Date, such Security shall cease to be outstanding and interest will cease to accrue and will be deemed paid regardless of whether such Security has been delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right of such Holder to receive the Repurchase Price upon delivery of such Security).
(d) On or prior to the Repurchase Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03 of the Indenture) an amount of money sufficient to pay the Repurchase Price of the Securities which are to be repaid on the Repurchase Date.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Business Day following the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5 1/2% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Article 13 herein until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(df) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes delivered for repurchase shall be Any Holder that has delivered to the Trustee a Change in Control Purchase Notice shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent prior to the close of business on such date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, which remains subject to the notice of exercise of a repurchase right. A Security in respect of which a Holder has exercised its option to require repurchase upon a Change in Control may thereafter be canceled converted into Common Stock only if such Holder withdraws its notice in accordance with the provisions preceding sentence.
(h) Any issuance of Section 2.8shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor in cash at the current market value thereof to the Holder of Securities. For these purposes, the current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the Repurchase Date.
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company or, at the written request in a Company Order and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record Notes, in the manner provided in Section 106 of the Notes a Indenture, notice (the "“Fundamental Change Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Fundamental Change Company Notice to the Trustee. The If such notice is to be given by the Trustee, the Company shall deliver, on or before the fifth day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the information to be included in such notice including the information set forth below. Each Fundamental Change Company Notice shall contain the following informationstate:
(1i) a brief description of the Fundamental Change Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Fundamental Change Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Notes are to be surrendered for payment of the Fundamental Change Repurchase Price and accrued interest, if any (including Contingent Interest and Special Interest, if any), to the Fundamental Change Repurchase Date,
(8) v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price, and accrued interest, if any (including Contingent Interest and Special Interest, if any), to, but excluding, the Fundamental Change Repurchase Date will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the aggregate principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places that the Note certificate with the Election of Holder to Require Repurchase as specified in Section 3.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article X are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase rightright pursuant to Article X, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after Business Day prior to the Company Notice was mailed Fundamental Change Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the aggregate principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateFundamental Change Repurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee before 10:30 a.m. (New York City time) on the repurchase date any Fundamental Change Repurchase Date the Fundamental Change Repurchase Price in cash, as provided above, for payment to the Holder on the Fundamental Change Repurchase Date, together with accrued and unpaid interest (including Contingent Interest and Special Interest, if any) to, but excluding, the Fundamental Change Repurchase Date, payable with respect to the Notes (or portions thereof) as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the principal Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Notes Notes, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, the aggregate principal amount of such Note (or portion thereof, as the case may be), shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Fundamental Change Repurchase Date at the rate borne by the Note of 4% per annum, and each such Note shall be remain convertible into cash and Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Stock, if any, until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and upon its actual receipt by a Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note pursuant to such Company Order without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g6) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall cancel the same as provided in accordance Section 309 of the Indenture.
(7) To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 10.2(3) exceeds the aggregate Fundamental Change Repurchase Price of the Notes or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date together with accrued but unpaid interest (including Contingent Interest and Special Interest, if any) thereon, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Fundamental Change Repurchase Date the Trustee shall return any such excess to the Company together with interest, if any, thereon.
(8) When complying with the provisions of Section 2.810.1 hereof (so long as such offer or repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or repurchase), the Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply in all material respects with all federal and state securities laws so as to permit the rights and obligations under Section 10.1 to be exercised in the time and in the manner specified in Section 10.1.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the --------------------------------------------------- Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record Securities, in the manner provided in Section 13.12 of the Notes a Subordinated Indenture, written notice (the "Company NoticeOffer to Purchase") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Offer to Purchase to the Trustee. The Simultaneously with giving such notice, the Company Notice shall contain the following informationissue a Press Release including all relevant information in such notice. Each Offer to Purchase shall state:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 10.3(2),
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date ,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 3.2 shall be delivered. No failure of the Company to give the foregoing notices Offer to Purchase or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article X are inconsistent with applicable law, such law shall govern.
(b1) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on date that is five Business Days prior to the thirty-fifth (35th) day after Repurchase Date stated in the Company Notice was mailed Offer to Purchase (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c2) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Subordinated Securities, registered as such at the close of business on the relevant Record Date.
(3) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7 1/4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d4) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service chargecharge and at no charge to the Trustee, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e5) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(6) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f7) If Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g) 8) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled and disposed of as provided in accordance with Section 2.10 of the provisions of Section 2.8Indenture.
Appears in 1 contract
Sources: Supplemental Subordinated Indenture (Exodus Communications Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless Within ten days following any Change of Control, the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient mail a notice to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth each Holder (10th) calendar day following the occurrence of with a Repurchase Event, the Company or, at the written request of the Company, copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and stating:
(i) the Repurchase Date, which shall mail to all holders of record of not be less than 20 Business Days, nor will it exceed 30 Business Days from the Notes a date such notice is mailed (the "Company NoticeRepurchase Date") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase Event);
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;
(5iii) the last date Repurchase Price, and whether the Repurchase Price shall be paid by which the election to require repurchase, if submitted, must be revokedCompany in cash or by delivery of shares of Common Stock;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where, or procedures by which, such Notes are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date;
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the 60 61 place or places where where, or procedures by which, such Notes may be surrendered for conversion;
(vii) the place or places that the Note with the "Option of Holder to Elect Purchase" as specified on the reverse of the Note shall be delivered;
(viii) that any Note not tendered shall continue to accrue interest;
(ix) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Repurchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and
(x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on date specified in the thirty-fifth (35th) day after the Company Notice was mailed repurchase notice (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer . The right of the Holder to convert the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, deposit with 61 62 or pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment by the Trustee to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(4) If the Company fails to any Note (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes Repurchase Date, the principal amount of such Note (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note specified therein, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver mail (or cause to be transferred by book entry) to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered; provided that each such new Note shall be in principal amount of $1,000 or an integral multiple thereof.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall 62 63 be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company shall deposit with will deliver to the Trustee applicable Holder its check for the current market value of such fractional share or with round up the number of shares of Common Stock issuable upon conversion to the nearest whole share). The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company is unable shall not be required to repurchase on pay any tax or duty which may be payable in respect of (i) income of the repurchase date all Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes (being repurchased, and no such issuance or portions thereof) as delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 2.12.
(10) The provisions described above that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions in this Indenture are applicable. Notwithstanding any other provision of this Article 11, the Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the provisions requirements set forth in this Indenture applicable to a Change of Section 2.8Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Sources: Indenture (Orion Power Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption of all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth fifteenth (10th15th) calendar day following after the occurrence of a Repurchase Risk Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Risk Event and of the repurchase purchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such Notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The City of New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) 5) the Conversion Price conversion price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holders right to exercise a repurchase purchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after preceding the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business last Trading Day prior to preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid the Repurchase Price in cash to the Holder on Repurchase Date, together with accrued and unpaid interest to the repurchase date any Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase purchase right has been properly exercised, then provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more predecessor Notes, registered as such at the close of business on the relevant Regular Record Date according to the terms and provisions of Article 3.
(d) If any Note surrendered for repurchase shall be so paid on the Repurchase Date, the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(ef) On or prior Prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.410.3) an amount of money sufficient to pay the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as that are to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based repaid on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Buffets Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar thirtieth day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the thirtieth day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, ----------- notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of -------------- the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date, the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(7) the place or places that the Notice of Election of Holder to Require Repurchase attached hereto as Exhibit B, shall be delivered, --------- and the form of such notice, and
(8) the CUSIP number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close thirtieth day (or such greater period as may be required by applicable law) after the date of business on the thirty-fifth (35th) day after the Company Notice was mailed (i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note then in effect per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common ------------ Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with Section 2.10. ------------ ARTICLE THIRTEEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE
SECTION 13.1 Company to Furnish Trustee Names and Addresses of Holders. --------------------------------------------------------- The Company will furnish or cause to be furnished to the provisions Trustee:
(a) semi-annually, not more than 15 days after the Regular Record Date, a list, in such form as the Trustee may reasonably require, of Section 2.8the names and addresses of the Holders of Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may reasonably request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that no such list need be furnished so long as the Trustee is acting as Security Registrar.
Appears in 1 contract
Sources: Indenture (Cell Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) the instructions a description of the procedure which a holder Holder must follow to exercise a repurchase right; ,
(5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, and
(8) 6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on 5th day prior to the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the Holders of the Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate per annum borne by the Note such Security, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to at the office or agency of the Company and accompanied by appropriate evidence designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) All Notes delivered for No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be delivered to computed on the Trustee to be canceled in accordance with basis of the provisions aggregate principal amount of Section 2.8.the Securities so
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request (and expense) of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Notes, in the Notes a manner provided in Section 17.03, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Notes are to be surrendered for payment of the Repurchase Price and accrued interest, if any, to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, to the Repurchase Date, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places that the Note certificate with the Election of Holder to Require Repurchase upon a Change in Control as specified in Exhibit A shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 4 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase right has been properly exercised; provided, then however, that installments of interest payable on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7.25% per annum, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.08.
Appears in 1 contract
Sources: Indenture (Compudyne Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the 100 repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with 101 addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in control, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The City of New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) 5) the Conversion Price conversion rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.the
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of _____% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Oni Systems Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption of all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Company Notice to the Trustee. Each notice of a repurchase right to the Trustee. The Company Notice shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, and
(8) 6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. So long as the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall so require, on or before the 30th day after the occurrence of a Fundamental Change, the Company or, at the request of the Company, the Paying Agent in Luxembourg, will provide notice of such Fundamental Change by publishing such notice in an Authorized Newspaper in Luxembourg, or, if not practicable in Luxembourg, elsewhere in a Western European city. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in 107 117 part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee or the Paying Agent the Repurchase Price in cash, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date together with accrued and unpaid interest to, but excluding, the Repurchase Date payable with respect to the Securities as to which the repurchase their purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes securities delivered for repurchase shall be delivered to the Trustee Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar thirtieth day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the thirtieth day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company NoticeCOMPANY NOTICE") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date, the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(7) the place or places that the Notice of Election of Holder to Require Repurchase attached hereto as Exhibit B, shall be delivered, and the form of such notice, and
(8) the CUSIP number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Twelve are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close thirtieth day (or such greater period as may be required by applicable law) after the date of business on the thirty-fifth (35th) day after the Company Notice was mailed (i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii2) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note then in effect per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.8.2.10. ARTICLE THIRTEEN
Appears in 1 contract
Sources: Indenture (Asm International N V)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 20th day following after the occurrence of a Repurchase Designated Event, the Company or, at the written request shall give to all Holders of the Company, Securities and to the Trustee, shall mail to all holders of record of in the Notes a manner provided in Section 1.6, notice (the "“Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Designated Event and of the repurchase right set forth herein arising as a result thereof. The thereof and the Company shall also deliver issue a copy of Press Release including the information required to be included in such notice of a repurchase right to the TrusteeCompany Notice hereunder. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Additional Interest, if any)
(8) v) that on the Repurchase Date the Repurchase Price will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon will cease to accrue on and after such date,
(vi) the Conversion Price Rate then in effect, whether the conversion rights are then exercisable, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after date specified in the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made therebythereby (the “Repurchase Notice”), and (ii) the Notes Securities with respect to which the repurchase right is being exercised, exercised duly endorsed for transfer transfer.
(3) A Holder may withdraw any Repurchase Notice by delivering a written notice of withdrawal to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee Paying Agent prior to the close of business on the Business Day Repurchase Date (“Withdrawal Notice”). The Withdrawal Notice must state:
(i) the principal amount of the withdrawn Securities;
(ii) if certificated Securities have been issued, the certificate number of the withdrawn Securities (or, if the Securities are not certificated, the Withdrawal Notice must comply with appropriate DTC procedures); and
(iii) the principal amount, if any, which remains subject to the Repurchase Notice.
(4) Payment of the Repurchase Price for a Security for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Security, together with necessary endorsements, to the Paying Agent at its corporate trust office in the Borough of Manhattan, The City of New York, or any other office of the Paying Agent, at any time after delivery of the Repurchase Notice. Payment of the Repurchase Price for the Security will be made promptly following the later of the Repurchase Date and the time of book-entry transfer or delivery of the Security. If the Paying Agent holds money sufficient to pay the Repurchase Price of the Security on the Repurchase Date, then, on and after the business day following the Repurchase Date:
(i) the Security will cease to be outstanding;
(ii) interest will cease to accrue in respect of any date from and after the Repurchase Date; and
(iii) all other rights of the Holder will terminate, other than the right to receive the Repurchase Price upon delivery of the Security. This will be the case whether or not book-entry transfer to the Security has been made or the Security has been delivered to the Paying Agent. Installments of interest that mature on or prior to the repurchase dateRepurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(c5) If the Company fails to any Security (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes Repurchase Date the principal amount of such Security (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 3% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d6) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g7) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 3.9.
(8) The Company will comply with the provisions of Section 2.8Exchange Act and the rules and regulations promulgated under the Exchange Act, to the extent applicable, in connection with the Company Notice.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6 notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Company Notice to the Trustee. Each notice of a repurchase right to the Trustee. The Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 12.3(b),
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any, to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued and unpaid interest, if any, will become due and payable upon each such Securities designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Securities certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article VIII are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Securities is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date. The Company covenants that, if the Repurchase Price is to be paid in cash, at least one Business Day prior to the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the principal of, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such Repayment Date.
(d) If any Securities (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Securities (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of [ ]% per annum, and each such Note Securities shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Securities (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Securities which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his such ▇▇▇▇▇▇'s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Securities without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Securities so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Securities declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Securities or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, Trustee shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date ▇▇▇▇▇▇▇▇▇▇ Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on immediately preceding the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date ▇▇▇▇▇▇▇▇▇▇ Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient Securities pursuant to redeem such Notes on the redemption date as set forth in Section 3.2Article III, on or before the tenth (10th) calendar 15th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the CompanyCompany on or before the 10th day after receipt of such request, the Trustee, Trustee shall mail give to all holders of record of the Notes a Securities notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder must follow to exercise a repurchase right; and,
(8) 5) that on the Repurchase Date the Repurchase Price will become due and payable upon each such Security designated by the holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price then in effectPrice, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee or any paying agent on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with the terms hereof, duly endorsed for transfer the Company shall pay or cause to be paid to the Company. Election of repurchase by a Trustee or the paying agent the Repurchase Price in cash, for payment to the holder shall be revocable at any time prior on the Repurchase Date, together with accrued and unpaid interest to, but excluding, the repurchase date, by delivering written notice to that effect Repurchase Date payable with respect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) Securities as to which the repurchase right has been properly exercised.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, then the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of __% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase datesurrendered that was not repurchased.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right Any holder that has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee its written notice exercising its right to require the Company to repurchase its Securities upon a Change in Control shall have the right to withdraw such notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Trustee prior to the close of business on such date. A Security in respect of which a holder is exercising its option to require repurchase upon a Change in Control may be canceled converted into Common Stock in accordance with Article XV only if such holder withdraws its notice in accordance with the provisions of Section 2.8preceding sentence.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless Within 20 days following any Fundamental Change, the Company shall have theretofore called for redemption all of mail a notice to each Holder (with a copy to the outstanding Notes Trustee) describing the transaction or transactions that constitute the Fundamental Change and deposited or set aside an amount of money sufficient to redeem such Notes on stating:
(i) the redemption Repurchase Date, which shall be a date as set forth in Section 3.2, on or before the tenth (10th) calendar day following the occurrence of a Repurchase Event, specified by the Company or, at that is not less than 20 nor more than 35 Business Days from the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a date such notice is mailed (the "Company NoticeREPURCHASE DATE") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase Event);
(2ii) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date time by which the repurchase right must be exercised, which shall be the close of business on the Repurchase Date;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Price;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where, or procedures by which, such Notes are to be surrendered for payment of the Repurchase Price;
(8) v) that on the Repurchase Date the Repurchase Price, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate (which shall be the close of business on the Business Day immediately preceding the Repurchase Date) and the place or places where where, or procedures by which, such Notes may be surrendered for conversion;
(vii) the place or places that the Note with the "Option of Holder to Purchase" as specified on the reverse of the Note shall be delivered;
(viii) that any Note not tendered shall continue to accrue interest;
(ix) that Holders shall be entitled to withdraw their election if the Paying Agent receives, prior to the close of business on the Repurchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Original Principal Amount of Notes delivered for purchase, and a written statement that (a) states such Holder is withdrawing its election to have the Notes purchased, (b) if certificated Notes have been issued, states the certificate number of the withdrawn Notes, (c) if the Notes are not certificated, contains such statements as required by the Depositary and (d) states the Original Principal Amount, if any, that remains subject to the repurchase notice; and
(x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in Original Principal Amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in Original Principal Amount or an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount Original Principal Amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the Original Principal Amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, thereby and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable Holders may withdraw such election at any time prior to, but excluding, to the close of business on the Repurchase Date. The right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company fails shall accept for payment all Notes or portions thereof properly tendered, deposit with or pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment by the Trustee to the Holder on the repurchase date Repurchase Date; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate Original Principal Amount of Notes or portions thereof being purchased by the Company.
(d) If any Notes Note (or portions portion thereof) as to which surrendered for repurchase shall not be so paid on the repurchase right has been properly exercisedRepurchase Date, then the principal Accreted Principal Amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note specified therein, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal Accreted Principal Amount of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver mail (or cause to be transferred by book entry) to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount Original Principal Amount equal to and in exchange for the unrepurchased portion of the principal Original Principal Amount of the Note so surrendered.
(e) On ; provided that each such new Note shall be in Original Principal Amount of $1,000 or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase datean integral multiple thereof.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 2.12.
(g) In connection with any purchase of Notes pursuant to this Section 11.02, the provisions Company will comply with Rule 13e-4 under the Exchange Act to the extent applicable at that time.
(h) No Notes may be purchased by the Company pursuant to this Section 11.02 if the Accreted Principal Amount of Section 2.8the Notes has been accelerated, and such acceleration has not been rescinded on or prior to such date.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar day following the occurrence of a Repurchase EventSecurities, the Company or, at the written request of the Company, shall give to the Trustee, shall mail to the Paying Agent and all holders Holders of record of Securities, in the Notes manner provided in this Section 3.4, a notice containing the information required pursuant to the following provisions of this Section 3.4(a) (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the form event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as prepared by the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising a Fundamental Change that arises as a result thereofof any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right any Company Notice to the Trustee. The At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall provide the Company Notice to the Holders in accordance with the provisions of this Indenture. Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date or the Fundamental Change Repurchase Date, as the case may be,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the Additional percentage of the Repurchase AmountPrice or the Fundamental Change Repurchase Price, if any;as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(7iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change,
(v) that Securities with respect to which a Holder gives a Repurchase Notice or Fundamental Change Repurchase Notice may be converted only if the Holder withdraws the Repurchase Notice or Fundamental Change Repurchase Notice as to such Securities in accordance with the terms of this Indenture,
(vi) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(8) vii) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(viii) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and ,
(ix) the place or places where Notes may that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be surrendered for conversiondelivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(x) the name and address of the Paying Agent and Conversion Agent, and
(xi) if the notice relates to a Fundamental Change, the estimated amount of any Make-Whole Premium and the respective percentages of such Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xii) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightright pursuant to Section 3.1 or Section 3.2, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Paying Agent (i) written notice (in the case of a repurchase pursuant to Section 3.1, a "Repurchase Notice" and, in the Company (or agent designated by the Company for such purposecase of a repurchase pursuant to Section 3.2, a "Fundamental Change Repurchase Notice") of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certificated, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect Securities to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable Repurchase Notice or Fundamental Change Repurchase Notice relates at any time prior toafter delivery of the Repurchase Notice or the Fundamental Change Repurchase Notice, but excludingas the case may be (together with all necessary endorsements), at the repurchase dateoffices of the Paying Agent, such delivery being a condition to receipt by delivering written notice the Holder of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, thereof; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to that effect this Section 3.4(b) only if the Securities so delivered to the Trustee Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice or Fundamental Change Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second Business Day prior to the repurchase date.
(c) If Repurchase Date or the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Fundamental Change Repurchase Date, as the Company case may be, subject to extension to comply with applicable law. Owners of beneficial interests in Global Securities shall deposit with the Trustee provide a Repurchase Notice or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Fundamental Change Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled Notice in accordance with the provisions Applicable Procedures of Section 2.8the Depositary.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request (and expense) of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release to Reuters Economic Services and Bloomberg Business News, including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 13.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase Repurchase Date on the date any Notes (or portions thereof) that is 45 days after the date of the Company Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5.00% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Anadigics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth fifteenth (10th15th) calendar day following after the occurrence of a Repurchase Risk Event, the Company 59 67 or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Risk Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such Notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The City of New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) 5) the Conversion Price conversion price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase purchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after preceding the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business last Trading Day prior to preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid the Repurchase Price in cash to the Holder on the repurchase date any Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more predecessor Notes, registered as such at the close of business on the relevant Regular Record Date according to the terms and provisions of Article 3.
(d) If any Note surrendered for repurchase shall be so paid on the Repurchase Date, the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(ef) On or prior Prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.410.3) an amount of money sufficient to pay the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as that are to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based repaid on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Prime Hospitality Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Securities and to the Notes a notice Trustee (the "Company NoticeCOMPANY NOTICE") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) the name and address of the Paying Agent and the Conversion Agent;
(vi) that Securities with respect to which a Change in Control Purchase Notice is given by the Holder may be converted only if the Change in Control Purchase Notice has been withdrawn in accordance with the terms set forth herein;
(vii) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and;
(8) viii) the Conversion Price then procedures for withdrawing a Change in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and Control Purchase Notice;
(ix) the place or places where Notes may such Securities are to be surrendered for payment of the Repurchase Price or for conversion;
(x) briefly, the conversion rights of Holders of Securities;
(xi) the Conversion Rate and any adjustments thereto; and
(xii) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities. No failure The Company shall cause a copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Notesnational circulation. If any Senior Indebtedness is outstanding at the time of the foregoing provisions are inconsistent with applicable lawoccurrence of a Change in Control, and such law Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall governprior to giving the Company Notice either: (i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness; or (ii) offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or (iii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(b) To exercise a repurchase right, a holder shall Holder must deliver to the Trustee on or before a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on the thirty-fifth (35th) day after Business Day prior to the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase NoticeCHANGE IN CONTROL PURCHASE NOTICE"), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Securities and (ii) surrender the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer Securities subject to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase dateChange in Control Purchase Notice.
(c) If Unless the Company fails has elected to repurchase pay the Repurchaser Price by delivery of shares of Common Stock on or prior to the Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase date all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the Company has elected to pay the Repurchase Price by delivery of Shares of Commons Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is acting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate on the Repurchase Date.
(d) If any Notes Security (or portions portion thereof) as to which surrendered for repurchase shall not have been repurchased on the repurchase right has been properly exercisedBusiness Day following the Repurchase Date, then the principal Repurchase Price in respect of such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Business Day following the Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of Repurchase Price and any such Note accrued interest shall have been paid or duly provided for.
(de) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), any such Paying Agent and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase datesurrendered that was not repurchased.
(f) If Any Holder that has delivered a Change in Control Purchase Notice shall have the Company is unable right to repurchase withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the repurchase date all Business Day immediately preceding the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Notes (or portions thereof) Securities as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on withdrawal notice relates and the principal amount of such Noteamount, in proportion if any, that remains subject to the aggregate amount change in Control Purchase Notice. A Security in respect of Notes surrendered for repurchasewhich a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the preceding sentence.
(g) All Notes delivered Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be delivered deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open.
(h) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Common Stock is valued for purposes of Section 11.01.
(i) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder being repurchased for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Security repurchased, and the Company shall not be required to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
(j) Notwithstanding anything to the contrary in this Section 11.03, the Company shall not be required to give the Company Notice following the occurrence of a Change in Control if:
(i) it shall notify the Trustee in writing no later than 20 days after the Change in Control that another Person shall make the offer and repurchase as hereafter set forth and of the identity of the appropriate officers of such Person to liaise with the Trustee with respect thereto; and
(ii) in the manner, at the time and otherwise in compliance with the requirements set forth herein regarding the Company's obligation to offer to repurchase the Outstanding Securities following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Outstanding Securities, (B) such Person repurchases all Outstanding Securities validly tendered and not withdrawn, and (C) such Person makes all payments with respect thereto. Notwithstanding the foregoing, the Company shall remain at all times the sole obligor with respect to all of its obligations hereunder (unless the Trustee shall have entered into a supplemental indenture complying with Article 8 hereof providing for another Person to succeed to the Company hereunder and assume the covenants of the Company hereunder), and any failure of the performance of any such offer or repurchase obligation in the absence of such a supplemental indenture shall be canceled a failure by the Company as if the Company were itself giving the Company Notice and repurchasing Outstanding Securities in accordance with the provisions of Section 2.8herewith.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders of record of Holders, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and notify one or more nationally-recognized reporting institutions such as Bloomberg of the Change in Control and repurchase right. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversionCONVERSION,](74) and
(vii) the place or places that the Notice of Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is Securities to be repurchased only (and, if any Security is to repurchased in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed bypart, the holder thereof (or his attorney duly authorized in writing)serial number thereof, and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal amount thereof to be repurchased and the name of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold Person in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the portion thereof to remain Outstanding after such repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee is to be canceled in accordance with the provisions of Section 2.8.----------
Appears in 1 contract
Sources: Indenture (Sonus Networks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the “Company Notice”). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1i) a brief description of the Repurchase EventDate;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Repurchase Right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amountaccrued and unpaid interest, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and
(8) the Conversion Price then in effectRepurchase Right, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(v) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Rate then in effect, the place where such Securities may be surrendered for conversion and that Securities as to which a Fundamental Change Repurchase Notice has been given may be converted pursuant to Article XII of this Indenture only to the extent that the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) the place or places where such Securities, together with the Fundamental Change Repurchase Notice included in Exhibit A annexed hereto, are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any; and
(viii) whether a Make-Whole Premium shall be payable by the Company upon conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XI are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right in respect of a Security, a holder Holder shall deliver a written notice of the exercise of such right (a “Fundamental Change Repurchase Notice”) to the Trustee prior to the Repurchase Date. Such Fundamental Change Repurchase Notice shall state:
(i) the certificate number (if such Security is not a Global Security) of the Security which the Holder will deliver to be purchased;
(ii) the portion of the principal amount of the Security which the Holder will deliver to be purchased in integral multiples of $1,000; and
(iii) that such Security shall be purchased as of the Repurchase Date pursuant to the terms and conditions specified in the Securities and in this Indenture. The delivery of a Security for which a Fundamental Change Repurchase Notice has been timely delivered to the Trustee and not validly withdrawn (together with all necessary endorsements) at the office of the Trustee shall be a condition to the receipt by the Holder of the Repurchase Price therefor. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Fundamental Change Repurchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(c) In the event a Repurchase Right shall be exercised in accordance with the terms hereof (unless a Fundamental Change Repurchase Notice is withdrawn as specified in Section 11.3(f)), the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash, as provided above, for payment to the Holder on the Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the Repurchase Right has been exercised; provided, however, that installments of interest that mature prior to or before on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the thirty-fifth relevant Regular Record Date.
(35thd) day after the Company Notice was mailed (i) written notice to the Company If any Security (or agent designated by portion thereof) surrendered for repurchase shall not be so paid on the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holderDate, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes such Security (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by of interest on the Note Security, and each such Note shall be Security shall, to the extent the Fundamental Change Repurchase Notice in respect thereof is withdrawn in accordance with the provisions of Section 11.3(f), remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Nektar Therapeutics)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar day following the occurrence of a Repurchase EventSecurities, the Company or, at the written request of the Company, shall give to the Trustee, shall mail to the Paying Agent and all holders Holders of record of Securities, in the Notes a manner provided in this Section 3.4, notice (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the form event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as prepared by the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising a Fundamental Change that arises as a result thereofof any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right any Company Notice to the Trustee. The At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall give the Company Notice to the Holders. Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date or the Fundamental Change Repurchase Date, as the case may be,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid by the Company in cash or by delivery of shares of Common Stock, or a specified combination thereof and the Additional percentage of the Repurchase AmountPrice or the Fundamental Change Repurchase Price, as the case may be, stated in a total principal amount as if any;all of the Securities then outstanding shall be redeemed on the applicable Repurchase Date or the applicable Fundamental Change Repurchase Date, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(7iv) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change, the date of the Fundamental Change and that the Securities with respect to which a Holder gives a Repurchase Notice with respect to a Fundamental Change (a "Fundamental Change Repurchase Notice") may be converted only if the Holder withdraws the Repurchase Notice as to such converted Securities in accordance with the terms of this Indenture,
(v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(8) vi) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (and Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vii) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and ,
(viii) the place or places where Notes may that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be surrendered for conversiondelivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit C, required by Section 2.12 shall be delivered,
(ix) the name and address of the Paying Agent and Conversion Agent, and
(x) the respective percentages of any Make-Whole Premium that will be paid (as contemplated by Section 6.1(b)) in shares of Common Stock and in cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 6.1(c)), in the event that a Holder should, in lieu of electing to have Securities repurchased on the Fundamental Change Repurchase Date, elect to convert such Securities during the Fundamental Change Conversion Period, and
(xi) any other information to be included therein pursuant to Section 6.1. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightright pursuant to Section 3.1 or Section 3.2, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Paying Agent (i) written notice to the Company (or agent designated by the Company for such purposea "Repurchase Notice") of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certified, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for book-entry transfer or delivery of such Security to the Company. Election of repurchase by a holder shall be revocable Paying Agent at any time after delivery of the Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor or the Fundamental Change Repurchase Price therefor, as the case may be; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section 3.4(b) only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice. In the case of a repurchase right pursuant to Section 3.1 and Section 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior toto the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, but excludingas the case may be, the subject to extension to comply with applicable law. A repurchase datenotice given by a Holder in accordance with this Section 3.4(b) may be withdrawn, in whole or in part, by delivering means of a written notice to that effect of withdrawal delivered to the Trustee office of the Paying Agent at any time prior to the close of business on the day that is one Business Day before the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, specifying:
(i) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary procedures if Certificated Securities have not been issued,
(ii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice and which has been or will be delivered for purchase by the Company. The Company may, in its sole and complete discretion, accept a written notice of withdrawal on or after the close of business on the day that is one Business Day prior to the repurchase dateRepurchase Date or the Fundamental Change Repurchase Date, as the case may be. The decision of the Company to accept or reject such a withdrawal notice shall be conclusive and binding on the Holder proposing to make the withdrawal.
(c) If There shall be no purchase of any Securities pursuant to this Article III if an Event of Default has occurred and is continuing (other than a default that is cured by the payment of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be). The Paying Agent shall promptly return to the respective Holders thereof any Securities (i) with respect to which a Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture or (ii) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be) in which case, upon such return, the Repurchase Notice or the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(d) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, in cash and/or shares of Common Stock, subject to and as provided in Section 3.3 and subject to the Share Limitation, for payment to the Holder on the repurchase date any Notes (Repurchase Date or portions thereof) the Fundamental Change Repurchase Date, as the case may be, together with accrued and unpaid interest to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, payable with respect to the Securities as to which the repurchase right has been properly exercised.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date or the Fundamental Change Repurchase Date, then as the principal of case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be with respect to such Notes Security shall, until paidso repurchased, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, at a rate equal to the rate borne by Interest Rate on the Note Security plus 1% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, plus any default interest accrued under this Section 3.4(e), shall have been paid or duly provided for.
(df) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(eg) On Any issuance of shares of Common Stock in respect of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be.
(h) No fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be payable in shares of Common Stock, then the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section 3.4(h), the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share on the most recent Trading Day immediately preceding the Repurchase Price and Additional Date or the Fundamental Change Repurchase AmountDate, if any, in cash for payment to as the holder on the repurchase datecase may be.
(fi) If Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (1) income of the Notes Holder or (2) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(gj) If shares of Common Stock to be delivered upon repurchase of a Restricted Security are to be registered in a name other than that of the "beneficial owner" of such Security (determined in accordance with Rule 13d-3, as in effect on the date of the original execution of this Indenture, promulgated by the SEC pursuant to the Exchange Act), then such Holder must deliver to the Trustee a Transfer Certificate in the form set forth in Exhibit C, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Transfer Certificate.
(k) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with at the provisions direction of Section 2.8the Trustee.
Appears in 1 contract
Sources: Purchase Agreement (Integrated Electrical Services Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless Within 30 days following any Change of Control, the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient mail a notice to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth each Holder (10th) calendar day following the occurrence of with a Repurchase Event, the Company or, at the written request of the Company, copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and stating:
(i) the Repurchase Date, which shall mail to all holders of record of not be less than 20 Business Days, nor will it exceed 30 Business Days from the Notes a date such notice is mailed (the "Company NoticeRepurchase Date") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase Event);
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;
(5iii) the last date Repurchase Price, and whether the Repurchase Price shall be paid by which the election to require repurchase, if submitted, must be revokedCompany in cash or by delivery of shares of Common Stock;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where, or procedures by which, such Notes are to be surrendered for payment of the Repurchase Price and accrued interest, if any, to the Repurchase Date;
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, to the Repurchase Date, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where where, or procedures by which, such Notes may be surrendered for conversion;
(vii) the place or places that the Note with the "Option of Holder to Elect Purchase" as specified on the reverse of the Note shall be delivered;
(viii) that any Note not tendered shall continue to accrue interest;
(ix) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Repurchase Date, a telegram, telex, 66 facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and
(x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to U.S. $1,000 in principal amount or an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on date specified in the thirty-fifth (35th) day after the Company Notice was mailed repurchase notice (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer . The right of the Holder to convert the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, deposit with or pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment by the Trustee to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, however, that installments of interest with a Stated Maturity on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(4) If the Company fails to any Note (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes Repurchase Date, the principal amount of such Note (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note specified therein, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver mail (or cause to be transferred by book entry) to the holder of such Note Holder without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered; provided that each such new Note shall be in principal amount of U.S. $1,000 or an integral multiple thereof.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company shall deposit with calculate and pay a cash adjustment in respect of such fraction (calculated to the Trustee nearest 1/100th of a share) or with round up the number of shares of Common Stock issuable upon conversion to the nearest whole share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company is unable shall not be required to repurchase on pay any tax or duty which may be payable in respect of (i) income of the repurchase date all Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes (being repurchased, and no such issuance or portions thereof) as delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 2.12. Notwithstanding any other provision of this Article 11, the Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the provisions requirements set forth in this Indenture applicable to a Change of Section 2.8Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.05, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest and Liquidated Damages, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the certificate required by Section 2.03 shall be delivered, and the form of such certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee or the Paying Agent the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date together with accrued and unpaid interest and Liquidated Damages, if any, to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article III.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places that the certificate required by Section 2.2 shall be delivered, and the form of such certificate and the place or places that the Surrender Certificate required by Section 14.3(i) shall be delivered. In addition, at least two Business Days preceding the Repurchase Date, the Company shall give to all Holders of the Securities, in the manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or shares of common stock and shall deliver a copy of such notice to the Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with 119 respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be 120 payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repur chased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (DSC Communications Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, Trustee shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the “Company Notice”). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion;
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any; and
(8) whether a Make-Whole Premium shall be payable by the Company upon conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Sources: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase EventDate;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;
(5iii) the last date Repurchase Price, and whether the Repurchase Price shall be paid by which the election to require repurchase, if submitted, must be revokedCompany in cash or by delivery of shares of Applicable Stock;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Special Interest, if any), if any to the Repurchase Date;
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Special Interest, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion;
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered; and 105
(viii) the Holder's right to withdraw a completed Company Notice and the procedures for withdrawing a Company Notice pursuant to clause (2) below. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on second Business Day immediately preceding the thirty-fifth (35th) 20th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Applicable Stock, the name or names (with addresses) in which the certificate or certificates for shares of Applicable Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer . Notwithstanding anything in this Indenture to the Company. Election contrary, any Holder which has delivered a completed Company Notice to the Trustee shall have the right to withdraw such Company Notice by delivery of repurchase by a holder shall be revocable written notice of withdrawal delivered to the Corporate Trust Office of the Trustee in accordance with the Company Notice at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the second Business Day prior immediately preceding the Repurchase Date specifying:
(i) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted;
(ii) the principal of the Security with respect to which such notice of withdrawal is being submitted; and
(iii) the principal, if any, of such Security which remains subject to the original Purchase Notice and which has been or will be delivered for purchase by the Company. The Trustee shall promptly notify the Company of the receipt by it of any Company Notice or written notice of withdrawal thereof. The right of the Holder to convert the Securities with respect to which the repurchase date.right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date. 106
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Applicable Stock, as provided above, for payment to the Holder on the repurchase Repurchase Date or, if shares of Applicable Stock are to be paid, on the date any Notes (or portions thereof) that is 20 days after the date of the Company Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5.00% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Applicable Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Applicable Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Applicable Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Applicable Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. 107 Instead of any fractional share of Applicable Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Applicable Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Applicable Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Applicable Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Applicable Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Applicable Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Applicable Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Reliant Resources Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities or set aside an amount unless all of money sufficient to redeem such Notes on the redemption date as set forth Outstanding Securities shall have theretofore been converted in Section 3.2accordance with Article Thirteen, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders of record of Holders, in the Notes a manner provided in Section 106, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, including accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.and
(b7) To exercise a repurchase right, a holder shall deliver to the Trustee on place or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially places that the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase certificate required by a holder Section 203 shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing)delivered, and the Company shall execute, and the Trustee shall authenticate and deliver to the holder form of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedcertificate.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Southern Mineral Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Debentures, on or before the tenth fifteenth (10th15th) calendar day following after the occurrence of a Repurchase Risk Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Risk Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The City of New York, New York. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1a) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4b) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6c) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7d) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) e) the Conversion Price conversion price then in effect, the date on which the right to convert the principal amount of the Notes Debentures to be repurchased will terminate and the place or places where Notes such Debentures may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesDebentures. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Debentures to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Debentures with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Debentures with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day Repurchase Date.
(3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid the Repurchase Price in cash to the Holder on the Repurchase Date; PROVIDED, HOWEVER, that installments of interest that mature on or prior to the repurchase dateRepurchase Date shall be payable in cash to the Holders of such Debentures, or one or more predecessor Debentures, registered as such at the close of business on the relevant Regular Record Date according to the terms and provisions of Article 3.
(c4) If the Company fails to any Debenture surrendered for repurchase shall not be so paid on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercisedRepurchase Date, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Debenture and each such Note Debenture shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Debenture shall have been paid or duly provided for.
(d5) Any Note that Debenture which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Debenture without service charge, a new Note Debenture or NotesDebentures, containing identical terms and conditions, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Debenture so surrendered.
(e6) On or prior Prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.410.3) an amount of money sufficient to pay the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment of the Debentures that are to the holder be repaid on the repurchase dateRepurchase Date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Notes, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase Designated Event, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of the Notes a Notes, notice (the "Company “Designated Event Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Designated Event and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such Designated Event Notice to Holders, it shall also deliver a copy of give such notice of a repurchase right Designated Event Notice to the Trustee. The Company Each Designated Event Notice shall contain the following information:
(1) describe such Designated Event, shall state that as a brief description result of the occurrence of such Designated Event the Holder has the right to require the Company to repurchase the Holder’s Notes in whole or in part and shall state: the Designated Event Repurchase Event;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) Date, the date by which the repurchase right must be exercised;
(5) exercised pursuant to Section 3.15(b), the last date by which the election to require repurchaseDesignated Event Repurchase Price, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and
, and the place or places where such Notes are to be surrendered for payment of the Designated Event Repurchase Price and accrued and unpaid interest, if any, to, but excluding, the Designated Event Repurchase Date, that on the Designated Event Repurchase Date the Designated Event Repurchase Price, and accrued and unpaid interest, if any, will become due and payable upon each such Note designated by the Holder to be repurchased (8) unless such Holder exercises its right to convert such Note pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said date with respect to any Note designated by the Holder to be repurchased, the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and the place or places that the notice described in Section 3.15(b) shall be delivered, and the form of such notice. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Expressjet Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited then outstanding, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventTriggering Change of Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") notice, in the form as prepared by the Company manner provided in Section 11.02 hereof, of the occurrence of the Repurchase Event Triggering Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amountamount of accrued and unpaid interest, if any;
(74) a description of that on the procedure which a holder must follow Repurchase Date the Repurchase Price, accrued and unpaid interest and Liquidated Damages, if any, will become due and payable upon each such Note designated by the Holder to exercise a repurchase right; andbe repurchased, and that interest thereon shall cease to accrue on and after said date;
(8) 5) that any Holder electing to have any Note or portion thereof purchased pursuant to its Repurchase Right will be required to surrender such Note, together with the form entitled "Notice of Exercise of Repurchase Right" on the reverse side of such Note completed, to, in the case of Book-Entry Interests in a Global Note, the Trustee and, in the case, of Definitive Notes, the Trustee, in each case, at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Repurchase Date;
(6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion; and
(7) the place or places where such Notes, together with the Option to Elect Repayment Upon a Triggering Change of Control certificate annexed to the each Note are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article 4 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the third Business Day immediately preceding the Repurchase Date:
(1) written notice of the Holder's exercise of such Repurchase Right, which notice shall set forth the name of the Holder, the principal amount of the Notes to be repurchased (and, if any Note is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the Repurchase Right is being made thereby, and
(2) the Notes with respect to which the Repurchase Right is being exercised. Such written notice shall be irrevocable if not withdrawn prior to the close of business on the third Business Day prior to the repurchase dateRepurchase Date by delivery to the Trustee of a notice of withdrawal, except that the right of the Holder to convert the Notes with respect to which the Repurchase Right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date. The Company shall not pay accrued and unpaid interest on any such Notes so converted.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Repurchase Date, together with Liquidated Damages, if any, and accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Notes (or portions thereof) as to which the repurchase right Repurchase Right has been properly exercised; PROVIDED, then HOWEVER, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant record date.
(d) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the then applicable interest rate borne by on the Note Notes, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.11 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase Designated Event, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of the Notes a Securities, notice (the "Company “Designated Event Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Designated Event and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such Designated Event Notice to Holders, it shall also deliver a copy of give such notice of a repurchase right Designated Event Notice to the Trustee. The Company Trustee shall not be charged with notice or knowledge of a Designated Event until it shall have received a copy of such Designated Event Notice. Each Designated Event Notice shall contain describe such Designated Event, shall state that as a result of the following informationoccurrence of such Designated Event the Holder has the right to require the Company to repurchase the Holder’s Securities in whole or in part and shall state:
(1i) a brief description of the Designated Event Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 3.14(b),
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Designated Event Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Designated Event Repurchase Price,
(8) v) that on the Designated Event Repurchase Date the Designated Event Repurchase Price will become due and payable upon each such Security designated by the Holder to be repurchased (unless such Holder exercises its right to convert such Security pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said date with respect to any Security designated by the Holder to be repurchased,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the notice described in Section 3.14(b) shall be delivered, and the form of such notice. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightright following a Designated Event, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the Company date of the Designated Event Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "a “Designated Event Repurchase Exercise Notice"”), which Repurchase Notice notice shall set forth the name of the holderHolder, the certificate number of the Securities to be repurchased (and, if any Security is to repurchased in part, the portion of the principal amount thereof to be repurchased (which portion must be a Principal Amount of $1,000 or an integral multiple thereof)), and the name of the Notes Person in which the portion thereof to remain outstanding after such repurchase is to be repurchased, registered and a statement that an election to exercise the repurchase right pursuant to this Section 3.14(b) is being made thereby, thereby with respect to the Securities so specified for repurchase in such notice and (ii) delivery or book-entry transfer of the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer Securities to the Company. Election of repurchase by a holder shall be revocable Paying Agent at any time prior toafter delivery of the applicable Designated Event Notice (together with all necessary endorsements) at the office of the Paying Agent, but excluding, such delivery being a condition to receipt by the repurchase date, Holder of the Designated Event Repurchase Price therefor; provided that such Designated Event Repurchase Price shall be so paid pursuant to this Section 3.14 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Designated Event Repurchase Exercise Notice. Securities in respect of which a Designated Event Repurchase Exercise Notice has been given by delivering the Holder thereof may not be converted pursuant to Article X hereof on or after the date of the delivery of such Designated Event Repurchase Exercise Notice unless such Designated Event Repurchase Exercise Notice has first been validly withdrawn. A Designated Event Repurchase Exercise Notice may be withdrawn by means of a written notice to that effect of withdrawal delivered to the Trustee office of the Paying Agent at any time prior to the close of business on the Business Day prior immediately preceding the Designated Event Repurchase Date, specifying:
(1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Security in respect of which such notice of withdrawal is being submitted is represented by a Global Security,
(2) the Principal Amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains subject to the repurchase dateoriginal Designated Event Repurchase Exercise Notice and which has been or will be delivered for purchase by the Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Exercise Notice or written notice of withdrawal thereof.
(c) If the Holder of a Security exercises a repurchase right in accordance with this Section, the Company fails shall, prior to repurchase 10:00 a.m. (New York City time) on the repurchase date any Notes Business Day following the Designated Event Repurchase Date, deposit with the Paying Agent (or, if the Company or portions thereofa Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) the Designated Event Repurchase Price in cash (in immediately available funds if deposited on such Business Day) for payment to such Holder together with accrued and unpaid interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to the Securities as to which such Holder has exercised the repurchase right has been properly exercisedright; provided, then however, that installments of interest due on or prior to the Designated Event Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article XI of this Indenture.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid prior to 10:00 a.m. (New York City time) on the second Business Day following the Designated Event Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date first Business Day following the Designated Event Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for3.25% per annum.
(de) Any Note that With respect to any Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed bypart, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or prior to 1:00 p.m., New York City time on the Repurchase Date, Any purchase by the Company contemplated pursuant to the provisions of this Section shall deposit with be consummated by the Trustee or with a paying agent delivery of the consideration to be received by the Holder promptly following the later of (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4i) the Designated Event Repurchase Price Date and Additional Repurchase Amount, if any, in cash for payment to (ii) the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all time of the Notes (book-entry transfer or portions thereof) as to which delivery of the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseSecurity.
(g) All Notes delivered for repurchase Subject to Section 8.02, the Paying Agent shall be delivered return to the Trustee Company any cash that remains unclaimed, together with interest, if any, thereon, held by it for the payment of the Designated Event Repurchase Price; provided that to be canceled the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.14(c) exceeds the aggregate Designated Event Repurchase Price of, plus accrued interest, if any, to but excluding the Designated Event Repurchase Date payable with respect to, the Securities or portions thereof which the Company is obligated to purchase as of the Designated Event Repurchase Date then, unless otherwise agreed in accordance writing with the provisions of Section 2.8Company, promptly after the Business Day following the Designated Event Repurchase Date, the Paying Agent shall return any such excess to the Company together with interest, if any, thereon.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Oni Systems Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record Notes, in the manner provided in Section 106 of the Notes a Indenture, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Notes, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued and unpaid interest, if any, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places that the Note certificate with the Election of Holder to Require Repurchase as specified in Exhibit A hereto shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article Eight are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5% per annum, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company is unable shall not be required to repurchase on pay any tax or duty which may be payable in respect of (i) income of the repurchase date all Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes (being repurchased, and no such issuance or portions thereof) as delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with Section 309 of the provisions of Section 2.8Indenture.
Appears in 1 contract
Sources: First Supplemental Indenture (Mindspring Enterprises Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the ----------- "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(7) the place or places that the Notice of Election of Holder To Require Repurchase as provided in Section 2.2 shall be delivered, and the form of such ----------- Notice, and
(8) the Cusip number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, -------- ------- that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4.50% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required -------- ------- to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.8.3.9. -----------
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request (and expense) of the CompanyCompany given to the Trustee on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including all relevant information required to be included in such Company Notice. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock or a combination thereof (and the Additional Repurchase Amount, if any;applicable ratio of cash and Common Stock),
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities certificate the place or places that the Surrender Certificate required by Section 13.3(9) shall be delivered, and
(viii) the CUSIP number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIII are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that any portion of the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock or a combination thereof, as provided above, for payment to the Holder on the repurchase Repurchase Date or, if shares of Common Stock are to be paid, on the date any Notes (or portions thereof) that is 45 days after the date of the Company's Notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note then in effect per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of any portion of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and any portion of the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Medarex Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) the instructions a description of the procedure which a holder Holder must follow to exercise a repurchase right; ,
(5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, and
(8) 6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on 5th day prior to the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the Holders of the Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate per annum borne by the Note such Security, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to at the office or agency of the Company and accompanied by appropriate evidence designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share shall be determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repur chased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.10.
Appears in 1 contract
Sources: Indenture (Tech Data Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities or set aside an amount unless all of money sufficient to redeem such Notes on the redemption date as set forth Outstanding Securities shall have theretofore been converted in Section 3.2accordance with Article Thirteen, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders of record of Holders, in the Notes a manner provided in Section 106, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following information:
state: (1) a brief description of the Repurchase Event;
Date, (2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
, (5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase AmountCompany in cash or by delivery of shares of Common Stock, if any;
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and
, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any, (8) 5) that on the Repurchase Date the Repurchase Price, including accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, (6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and (7) the place or places that the form of certificate required by Section 203 shall be delivered, and the form of such certificate. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar day following the occurrence of a Repurchase EventSecurities, the Company or, at the written request of the Company, shall give to the Trustee, shall mail to the Paying Agent and all holders Holders of record of Securities, in the Notes a manner provided in this Section 3.4, notice (the "Company Notice") (i) on or before the 20th Business Day prior to the Repurchase Date or, in the form event of a Fundamental Change arising from a Change of Control, the anticipated Effective Date (but in no event earlier than 45 days prior to the Repurchase Date or anticipated Effective Date, as prepared by the case may be), and (ii) within 15 Business Days after the Company knows or reasonably should know of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising a Fundamental Change that arises as a result thereofof any Termination of Trading. Prior to or concurrently with the delivery of any Company Notice, the Company will issue a press release or publish such information on the Company's then existing website including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right any Company Notice to the Trustee. The At the request and expense of the Company on or before the fifth Business Day prior to the date on which the Company Notice is to be mailed, the Trustee shall give the Company Notice to the Holders. Each Company Notice shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date or the Fundamental Change Repurchase Date, as the case may be,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(3) the Repurchase Price, or the Fundamental Change Repurchase Price, as the case may be, and whether the Repurchase Price, or the Fundamental Change Repurchase Price, as ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ by delivery of shares of Common Stock, or a combination thereof and the percentage of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, stated in a total principal amount as if all of the Securities then outstanding shall be redeemed on the applicable Repurchase Date or the applicable Fundamental Change Repurchase Date, as the case may be, that will be paid in shares of Common Stock (which indication shall be irrevocable, subject to the satisfaction (or waiver) of the conditions set forth in Section 3.3),
(4) if the notice relates to the occurrence of a Fundamental Change, the events causing the Fundamental Change, the date of the Fundamental Change and that the Securities with respect to which a Holder gives a Repurchase Notice with respect to a Fundamental Change (a "Fundamental Change Repurchase Notice") may be converted only if the Holder withdraws the Repurchase Notice as to such converted Securities in accordance with the terms of this Indenture,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (including Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be,
(8) 6) that on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, and accrued but unpaid interest (including Liquidated Damages), if any, to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(7) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate in accordance with the terms of this Indenture and the place or places where Notes such Securities may be surrendered for conversion,
(8) the place or places that the Security certificate (including the Election of Holder to Require Repurchase attached thereto) and the Repurchase Notice (as defined below) shall be delivered, and, if the Security is a Restricted Security, the place or places that the Transfer Certificate in the form set forth in Exhibit D, required by Section 2.12 shall be delivered,
(9) the name and address of the Paying Agent and Conversion Agent, and
(10) the percentage of any Make-Whole Premium that will be paid in shares of Common Stock and cash (which indication shall be irrevocable), subject to the satisfaction (or waiver) of the conditions set forth in Section 8.1(c)), and
(11) any other information to be included therein pursuant to Section 8.1. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightright pursuant to Section 3.1 or Section 3.2, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Paying Agent (i) written notice to the Company (or agent designated by the Company for such purposea "Repurchase Notice") of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased (which portion must be in principal amounts of $1,000 or a whole multiple of $1,000) and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered), if certified, the certificate numbers of the Securities to be repurchased, and a statement that an election to exercise the repurchase right pursuant to the terms and conditions specified in the Securities and the Indenture is being made thereby, and, in the event that any portion of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for book-entry transfer or delivery of such Security to the Company. Election of repurchase by a holder shall be revocable Paying Agent at any time after delivery of the Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor or the Fundamental Change Repurchase Price therefor, as the case may be; provided, however, that such Repurchase Price or Fundamental Change Repurchase Price, as the case may be, shall be so paid pursuant to this Section only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice. In the case of a repurchase right pursuant to Sections 3.1 and 3.2, such delivery shall be at any time from the opening of business on the date that is 20 Business Days prior toto the Repurchase Date until the close of business on the second Business Day prior to the Repurchase Date or the Fundamental Change Repurchase Date, but excludingas the case may be, the subject to extension to comply with applicable law. A repurchase datenotice given by a Holder in accordance with this Section may be withdrawn, in whole or in part, by delivering means of a written notice to that effect of withdrawal delivered to the Trustee office of the Paying Agent at any time prior to the close of business on the day that is one Business Day before the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, specifying:
(1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary procedures if Certificated Securities have not been issued,
(2) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice and which has been or will be delivered for purchase by the Company. The Company may, in its sole and complete discretion, accept a written notice of withdrawal on or after the close of business on the day that is one Business Day prior to the repurchase dateRepurchase Date or the Fundamental Change Repurchase Date, as the case may be. The decision of the Company to accept or reject such a withdrawal notice shall be conclusive and binding on the Holder proposing to make the withdrawal.
(c) If There shall be no purchase of any Securities pursuant to this Article if an Event of Default has occurred and is continuing (other than a default that is cured by the payment of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be). The Paying Agent shall promptly return to the respective Holders thereof any Securities (i) with respect to which a Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, has been withdrawn in compliance with this Indenture or (ii) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be) in which case, upon such return, the Repurchase Notice or the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(d) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, in cash or shares of Common Stock, as provided in Section 3.3, for payment to the Holder on the repurchase date any Notes (Repurchase Date or portions thereof) the Fundamental Change Repurchase Date, as the case may be, together with accrued and unpaid interest to, but excluding, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, payable with respect to the Securities as to which the repurchase right has been properly exercised.
(e) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date or the Fundamental Change Repurchase Date, then as the principal of case may be, the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be with respect to such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, at a rate equal to the rate borne by Interest Rate on the Note Security plus 1% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, plus any default interest accrued under this Section 3.4(e), shall have been paid or duly provided for.
(df) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(eg) On Any issuance of shares of Common Stock in respect of the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be.
(h) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price or the Fundamental Change Repurchase Price, as the case may be, shall be payable in shares of Common Stock, then the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price per share of the Common Stock on the most recent Trading Day immediately preceding the Repurchase Price and Additional Date or the Fundamental Change Repurchase AmountDate, if any, in cash for payment to as the holder on the repurchase datecase may be.
(fi) If Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (1) income of the Notes Holder or (2) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(gj) If shares of Common Stock to be delivered upon repurchase of a Restricted Security are to be registered in a name other than that of the "beneficial owner" of such Security (determined in accordance with Rule 13d-3, as in effect on the date of the original execution of this Indenture, promulgated by the Commission pursuant to the Exchange Act), then such Holder must deliver to the Trustee a Transfer Certificate in the form set forth in Exhibit D, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Transfer Certificate.
(k) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with at the provisions direction of Section 2.8the Trustee.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) the instructions a description of the procedure which a holder Holder must follow to exercise a repurchase right; ,
(5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, and
(8) 6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder?s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on 5th day prior to the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, to the Holders of the Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate per annum borne by the Note such Security, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to at the office or agency of the Company and accompanied by appropriate evidence designated for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share shall be determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock shall be the Closing Price of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee Trustee, the Paying Agent or any other agents (as shall be set forth in the Company Notice) to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.10.
Appears in 1 contract
Sources: Indenture (Tech Data Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company NoticeCOMPANY NOTICE") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date and Record Date (if applicable),
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of Ordinary Shares,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest,
(8) v) that on the Repurchase Date, the Repurchase Price, and accrued and unpaid interest will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price then Rate than in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(vii) the place or places that the Notice of Election of Holder to Require Repurchase attached hereto as EXHIBIT E, shall be delivered, and the form of such notice, and
(viii) the CUSIP, CINS, ISIN and/or Common Code numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governSecurities.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close 30th day (or such greater period as may be required by applicable law) after the date of business on the thirty-fifth (35th) day after the Company Notice was mailed (iA) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in Ordinary Shares, the name or names (with addresses) in which the certificate or certificates for Ordinary Shares shall be issued, and (iiB) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or Ordinary Shares, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if Ordinary Shares are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; PROVIDED, then HOWEVER, that instalments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note then in effect per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Ordinary Shares until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of Ordinary Shares in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Ordinary Shares shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Ordinary Shares issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Ordinary Shares, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Ordinary Shares that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, if the Company current market price of a share of Ordinary Shares is acting as its own paying agent, segregate the average of the high and hold in trust as provided in Section 5.4) low sales price per Share of the Ordinary Shares on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for Ordinary Shares on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (1) income of the Notes Holder or (2) any transfer involved in the issuance or portions thereof) as delivery of certificates for Ordinary Shares in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 3.8.
(10) Any repurchase of Securities pursuant to this Article 12 will be made in compliance with all applicable laws, rules and regulations, including, if applicable, Regulation 14E under the Exchange Act and the rules thereunder and all other applicable federal state and securities laws. If any of the provisions of Section 2.8this Article 12 are inconsistent with applicable laws and regulations, such laws and regulations shall govern, and the Company's compliance with such laws and regulations shall not be deemed to cause a breach of the Company's obligations under this Indenture.
Appears in 1 contract
Sources: Indenture (Drdgold LTD)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 3.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Ciena Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company or, at the written request in a Company Order and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "“Fundamental Change Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right Fundamental Change Company Notice to the Trustee. The If such notice is to be given by the Trustee, the Company shall deliver, on or before the fifth day after such occurrence, a Company Order requesting the Trustee to give such notice and setting forth all the information to be included in such notice including the information set forth below. Each Fundamental Change Company Notice shall contain identify the following informationSecurities to be repurchased (including CUSIP numbers) and shall state:
(1i) a brief description of the Fundamental Change Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Fundamental Change Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Fundamental Change Repurchase Price and accrued interest, if any (including Additional Interest and Special Interest, if any), to the Fundamental Change Repurchase Date,
(8) v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price, and accrued interest, if any (including Additional Interest and Special Interest, if any), to, but excluding, the Fundamental Change Repurchase Date will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the aggregate principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after Business Day prior to the Company Notice was mailed Fundamental Change Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the aggregate principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the aggregate principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateFundamental Change Repurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee before 10:30 a.m. (New York City time) on the repurchase date any Notes Fundamental Change Repurchase Date the Fundamental Change Repurchase Price in cash, as provided above, for payment to the Holder on the Fundamental Change Repurchase Date, together with accrued and unpaid interest (or portions thereofincluding Additional Interest and Special Interest, if any) to, but excluding, the Fundamental Change Repurchase Date, payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the principal Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Notes Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Fundamental Change Repurchase Date, the aggregate principal amount of such Security (or portion thereof, as the case may be), shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Fundamental Change Repurchase Date at the rate borne by the Note of 7.625% per annum, and each such Note Security shall be remain convertible into cash and Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Stock, if any, until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and upon its actual receipt by a Responsible Officer of a Company Order to such effect, the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security pursuant to such Company Order without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g6) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance Section 3.9.
(7) To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 14.2(3) exceeds the aggregate Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date together with accrued but unpaid interest (including Additional Interest and Special Interest, if any) thereon, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Fundamental Change Repurchase Date the Trustee shall return any such excess to the Company.
(8) When complying with the provisions of Section 2.814.1 hereof (so long as such offer or repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or repurchase), the Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply in all material respects with all Federal and state securities laws so as to permit the rights and obligations under Section 14.1 to be exercised in the time and in the manner specified in Section 14.1.
Appears in 1 contract
Sources: Indenture (Alesco Financial Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of Alcatel ADSs,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places that the certificate required by Section 2.2 shall be delivered, and the form of such certificate and the place or places that the Surrender Certificate required by Section 14.3(i) shall be delivered. 113 In addition, at least two Business Days preceding the Repurchase Date, the Company shall give to all Holders of the Securities, in the manner provided in Section 1.6, notice specifying whether the Repurchase Price will be payable in cash or Alcatel ADSs and shall deliver a copy of such notice to the Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in Alcatel ADSs, the name or names (with addresses) in which the certificate or certificates for Alcatel ADSs shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or Alcatel ADSs, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if Alcatel ADSs are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) Alcatel ADSs until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, 114 the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any delivery of Alcatel ADSs in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for Alcatel ADSs shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the Alcatel ADSs represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such Alcatel ADSs are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Alcatel ADSs delivered upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of Alcatel ADSs shall be delivered upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Alcatel ADSs, the number of full Alcatel ADSs which shall be deliverable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional Alcatel ADSs which would otherwise be deliverable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional Alcatel ADSs . The current market value of a fraction of an Alcatel ADS is determined by multiplying the current market price of a full Alcatel ADS by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of an Alcatel ADS is the Closing Price Per Alcatel ADS on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for Alcatel ADSs on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for Alcatel ADSs in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If Alcatel ADSs to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on 115 transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner of Alcatel ADSs delivered upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Alcatel Usa Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and whether the Additional Repurchase Amount, if any;Price shall be paid by the Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date, 100 108 (6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.and
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventFundamental Change, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, Trustee shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Fundamental Change and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the “Company Notice”). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion;
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any; and
(8) whether a Make-Whole Premium shall be payable by the Company upon conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Sources: Indenture (Cyberonics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on On or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Notes, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver (i) a copy of such notice of a repurchase right to the TrusteeTrustee and (ii) make a public announcement thereof by release made to Reuters Economic Services and Bloomberg Business News. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase AmountCompany in cash or by delivery of shares of Common Stock, if any;92 99
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Notes, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places that the Note certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Note is a Restricted Note, the place or places that the Surrender Certificate required by Section 13.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article XIII are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchasedrepurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in 93 100 cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Note (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7.00% per annum, and each such Note shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Note declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the notes represented thereby; provided, however, that the Company is unable shall not be required to repurchase on pay any tax or duty which may be payable in respect of (i) income of the repurchase date all Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes (being repurchased, and no such issuance or portions thereof) as delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, paid.
(9) If shares of Common Stock to be delivered upon repurchase of a Note are to be registered in a name other than that of the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount beneficial owner of such Note, in proportion then such Holder must deliver to the aggregate amount Trustee a Surrender Certificate, dated the date of Notes surrendered for repurchasesurrender of such Restricted Note and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Note. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Note not so accompanied by a properly completed Surrender Certificate.
(g10) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled cancelled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (American Greetings Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security Certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If the Company fails to any Security (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes Repurchase Date, the principal amount of such Security (or portions portion thereof, as the case may be) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed -93- shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Analog Devices Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase Designated Event, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2, of the occurrence of the Repurchase Designated Event and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the accrued and unpaid interest (including Additional Repurchase AmountAmounts, if any), if any;
(74) whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock;
(5) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andits Repurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 6) that on the Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable in cash upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(7) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion;
(8) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment ---------- of the Repurchase Price and accrued and unpaid interest, if any; and
(9) the CUSIP number of the Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightits Repurchase Right, a holder Holder shall deliver to the Trustee prior to or on or before the close of business on the thirty-fifth Repurchase Date:
(35th) day after the Company Notice was mailed (i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued; and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer . The right of the Holder to convert the Securities with respect to which the Repurchase Right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date provided that the Holder delivers notice to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee Paying Agent prior to the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any stock certificate or stock certificates representing shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting stock certificate or stock certificates representing such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of stock certificates representing shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such stock certificates or for any tax or duty in respect of the issuance or delivery of such stock certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of stock certificates representing shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Securities, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, Trustee shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Securities notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the “Company Notice”). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued and unpaid interest, if any;
(8) 5) that on the Conversion Repurchase Date the Repurchase Price and accrued and unpaid interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the conversion rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(7) the place or places where such Securities, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on prior to or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed Notice:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right Repurchase Right is being made thereby, and and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (iiwith addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Notes Securities with respect to which the repurchase right Repurchase Right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Securities with respect to which the Trustee prior to Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, shares of Common Stock, as provided above, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Securities as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Security or Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Sources: Indenture (Cv Therapeutics Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless In the Company case of a Change in Control or a Termination of Trading, unless the Issuer shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Debentures, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30/th/ day following after the occurrence of a Repurchase EventChange in Control or a Termination of Trading, the Company Issuer, or, at the written request and expense of the CompanyIssuer prior to or on the 30/th/ day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Debentures notice, in the form as prepared by the Company manner provided in Section 10.3, of the occurrence of the Repurchase Event Change of Control or a Termination of Trading and of the repurchase right applicable Series A Repurchase Right or Series B Repurchase Right set forth herein arising as a result thereofthereof (as applicable, the "Fundamental Change Issuer Notice"). In the case of either a Series A Optional Repurchase Right or a Series B Optional Repurchase Right, 20 Business Days prior to either a Series A Optional Repurchase Date or a Series B Optional Repurchase Date, the Issuer, or, at the written request and expense of the Issuer fifteen days prior to such date, the Trustee, shall give to all Holders of Debentures of the affected series a notice, in the manner provided in Section 10.3, of the Series A Optional Repurchase Right or the Series B Optional Repurchase Right (as applicable, the "Optional Repurchase Right Issuer Notice" and, together with the Fundamental Change Issuer Notice, each an "Issuer Notice"). The Company Issuer shall also deliver a copy of such notice Issuer Notice of a repurchase right Series A Repurchase Right or Series B Repurchase Right to the Trustee. The Company Each Issuer Notice of a Series A Repurchase Right or Series B Repurchase Right shall contain the following informationstate:
(1) a brief description of the applicable Series A Repurchase EventDate or Series B Repurchase Date;
(2) the repurchase datedate by which the Series A Fundamental Change Repurchase Right, the Series B Fundamental Change Repurchase Right, the Series A Optional Repurchase Right, or the Series B Optional Repurchase Right must be exercised;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase rightapplicable Series A Repurchase Price or Series B Repurchase Price and accrued and unpaid interest, if any;
(4) unless such Issuer Notice is being given pursuant to a Termination of Trading or payment in ADRs is otherwise not allowed, whether the date applicable Series A Repurchase Price or Series B Repurchase Price shall be paid by which the repurchase right must be exercisedIssuer in cash or by delivery of ADRs, or a combination thereof, specifying the percentage of each;
(5) if the last date by which applicable Series A Repurchase Price or Series B Repurchase Price will be paid in ADRs, the election to require repurchase, if submitted, must be revokedmethod for calculating the average Trading Price of the ADRs;
(6) a description of the procedure which a Holder must follow to exercise its Series A Repurchase Right or Series B Repurchase Right, and the place or places where such Debentures, are to be surrendered for payment of the applicable Series A Repurchase Price or Series B Repurchase Price and the Additional Repurchase Amountaccrued and unpaid interest, if any;
(7) a description of that on the procedure which a holder must follow applicable Series A Repurchase Date or Series B Repurchase Date the applicable Series A Repurchase Price or Series B Repurchase Price and accrued and unpaid interest, if any, will become due and payable in cash upon each such Debenture designated by the Holder to exercise a repurchase right; andbe repurchased, and that interest thereon shall cease to accrue on and after said date;
(8) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Debentures to be repurchased will terminate and the place or places where Notes such Debentures may be surrendered for conversion, and
(9) the place or places where such Debentures, together with the Option to Elect Repayment certificate included in Exhibit A annexed hereto, are to be delivered for payment of the applicable Repurchase Price and accrued and unpaid interest, if any. No failure of the Company Issuer to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Series A Repurchase Right or Series B Repurchase Right or affect the validity of the proceedings for the repurchase of NotesDebentures. If any of the foregoing provisions or other provisions of this Article 8 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightSeries A Optional Repurchase Right, Series B Optional Repurchase Right, Series A Fundamental Change Repurchase Right or Series B Fundamental Change Repurchase Right, as the case may be, a holder Holder shall deliver to the Trustee on or before prior to the close of business two Business Days prior to the applicable Series A Optional Repurchase Date or Series B Optional Repurchase Date in the case of a Series A Optional Repurchase Right or Series B Optional Repurchase Right, as applicable, or prior to or on the thirty-fifth (35th) 30th day after the Company date of the Issuer Notice was mailed in the case of a Change in Control or a Termination of Trading:
(i1) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")relevant right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Debentures to be repurchased (and, if any Debenture is to be repurchased in part, the certificate number thereof, the portion of the principal amount thereof to be repurchased, ) and a statement that an election to exercise the repurchase right applicable Series A Repurchase Right or Series B Repurchase Right is being made thereby, and and, in the event that the Series A Repurchase Price or Series B Repurchase Price shall be paid in whole or in part in ADRs, the name or names (iiwith addresses) in which the certificate or certificates for the ADRs shall be issued (each such notice, a "Repurchase Notice");
(2) the Notes Debentures with respect to which the repurchase right Series A Repurchase Right or Series B Repurchase Right is being exercised; and
(3) unless such Repurchase Notice is being delivered pursuant to a Termination of Trading or payment in ADRs is otherwise not allowed, duly endorsed for transfer in the event the Issuer elects to pay the Series A Repurchase Price or Series B Repurchase Price to be paid as of such Series A Repurchase Date or Series B Repurchase Date, in whole or in part, in ADRs but such portion of the Series A Repurchase Price or Series B Repurchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in ADRs is not satisfied prior to the Companyclose of business on such Repurchase Date, as set forth in Section 8.2, whether such Holder elects (i) to withdraw such Repurchase Notice as to some or all of the Debentures to which such Repurchase Notice relates (stating the Principal Amount and certificate numbers of the Debentures as to which such withdrawal shall relate), or (ii) to receive cash in respect of the entire Series A Repurchase Price or Series B Repurchase Price for all Debentures (or portions thereof) to which such Repurchase Notice relates. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the repurchase date, by delivering written notice right of the Holder to that effect convert the Debentures with respect to which the Trustee prior to Series A Repurchase Right or Series B Repurchase Right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateSeries A Repurchase Date or the Series B Repurchase Date.
(c) If In the Company fails event a Repurchase Right shall be exercised in accordance with the terms hereof, the Issuer shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or ADRs, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if ADRs are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to, but excluding, the Repurchase Date payable in cash with respect to the Debentures as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Debentures, or one or more Predecessor Debentures, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Debenture (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Debenture (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Debenture shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) ADRs until the principal of such Note Debenture (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Debenture which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer to the Company and accompanied by appropriate evidence of genuineness and authority in form satisfactory to the Company Issuer and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company Issuer shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Debenture without service charge, a new Note Debenture or NotesDebentures, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Debenture so surrendered.
(ef) On or Any issuance of ADRs in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date, Date and the Company Person or Persons in whose name or names any certificate or certificates representing the ADRs shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may be issuable upon such repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based deemed to have become on the principal amount Repurchase Date the holder or holders of record of the ADRs represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Guarantor shall be closed shall constitute the Person or Persons in whose name or names the ADRs are to be issued as the holder or holders of record of the shares represented thereby for all purposes at the opening of business on the next succeeding day on which such Note, in proportion stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any ADRs issued upon repurchase of any Debenture declared prior to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) No fractions of shares of ADRs shall be issued upon repurchase of any Debenture or Debentures. If more than one Debenture shall be repurchased from the same Holder and the Repurchase Price shall be payable in ADRs, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions thereof) to be so repurchased. Instead of any fractional share of ADRs which would otherwise be issued on the repurchase of any Debenture or Debentures (or specified portions thereof), the Issuer shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the ADRs as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates representing ADRs on repurchase of Debentures shall be made without charge to the Holder of Debentures being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Debentures represented thereby; provided, however, that the Issuer shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates representing ADRs in a name other than that of the Holder of the Debentures being repurchased, and no such issuance or delivery shall be made unless the Person requesting such issuance or delivery has paid to the Issuer the amount of any such tax or duty or has established, to the satisfaction of the Issuer, that such tax or duty has been paid.
(i) All Notes Debentures delivered for repurchase shall be delivered to the Trustee to be canceled by Trustee, which shall dispose of the same as provided in accordance with Section 2.10 of the provisions of Section 2.8Base Indenture.
Appears in 1 contract
Sources: First Supplemental Senior Indenture (Teva Pharmaceutical Industries LTD)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase Repurchase Date or, if shares of Common Stock are to be paid, on the date any Notes (or portions thereof) that is 45 days after the date of the Company's notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 3.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (PMC Sierra Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price,
(8) v) that on the Repurchase Date the Repurchase Price will become due and payable upon each such Security designated by the Holder to be repurchased, and that Liquidated Damages will cease to accrue on and after such date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, on the date that is 45 days after the date of the Company's notice.
(4) If the Company fails to any Security (or portion thereof) surrendered for repurchase shall not be so paid on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercisedRepurchase Date, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Realnetworks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of [ ]% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Chiron Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on On or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase AmountLiquidated Damages, if any;, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and Liquidated Damages, if any,
(8) v) that on the Repurchase Date the Repurchase Price and Liquidated Damages, if any, will become due and payable upon each such Security designated by the Holder to be repurchased,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid Liquidated Damage, if any, to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Juniper Networks Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited Outstanding Debentures, prior to or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company Company, or, at the written request and expense of the CompanyCompany prior to or on the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of the Notes a notice (the "Company Notice") Debentures notice, in the form as prepared by the Company manner provided in Section 14.2 hereof, of the occurrence of the Repurchase Event Change of Control and of the repurchase right Repurchase Right set forth herein arising as a result thereofthereof (the "Company Notice"). The Company shall also deliver a copy of such notice of a repurchase right Repurchase Right to the Trustee. The Company Notice Each notice of a Repurchase Right shall contain the following informationstate:
(1) a brief description of the Repurchase EventDate;
(2) the repurchase datedate by which the Repurchase Right must be exercised;
(3) the CUSIP number(s) Repurchase Price and accrued and unpaid interest, if any, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of the Note(s) subject to the repurchase rightshares of Common Stock;
(4) the date by which the repurchase right must be exercised;
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7) a description of the procedure which a holder Holder must follow to exercise a repurchase right; andRepurchase Right, and the place or places where such Debentures are to be surrendered for payment of the Repurchase Price, accrued and unpaid interest and Liquidated Damages, if any;
(8) 5) that on the Repurchase Date the Repurchase Price, accrued and unpaid interest and Liquidated Damages, if any, will become due and payable upon each such Debenture designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date;
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Debentures to be repurchased will terminate and the place or places where Notes such Debentures may be surrendered for conversion,
(7) if applicable, that no Holder shall have a Repurchase Right upon a Change of Control unless prior to any payment of the Repurchase Price on the Repurchase Date the Company has made any applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in connection with such change of control offers, and
(8) the place or places where such Debentures, together with the Option to Elect Repayment Upon a Change of Control certificate included in Exhibit A annexed hereto are to be delivered for payment of the Repurchase Price and accrued and unpaid interest, if any. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right Repurchase Right or affect the validity of the proceedings for the repurchase of NotesDebentures. If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase rightRepurchase Right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the third Business Day immediately preceding the Repurchase Date:
(1) written notice of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Debentures to be repurchased (and, if any Debenture is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased) and a statement that an election to exercise the Repurchase Right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and
(2) the Debentures with respect to which the Repurchase Right is being exercised. Such written notice shall be irrevocable if not withdrawn prior to the close of business on the third Business Day prior to the repurchase dateRepurchase Date by delivery to the Trustee of a notice of withdrawal, except that the right of the Holder to convert the Debentures with respect to which the Repurchase Right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date. The Company shall not pay accrued and unpaid interest on any such Debentures so converted.
(c) If In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with Liquidated Damages, if any, and accrued and unpaid interest to the Repurchase Date payable in cash with respect to the Debentures as to which the repurchase right Repurchase Right has been properly exercised; provided, then however, that installments of interest that mature prior to or on the Repurchase Date shall be payable in cash to the Holders of such Debentures, or one or more Predecessor Debentures, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Debenture (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Debenture (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Interest Rate, and each such Note Debenture shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Debenture (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Debenture which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, by the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Debenture without service charge, a new Note Debenture or NotesDebentures, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Debenture so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock -------- ------- transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Debenture declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares of Common Stock shall be issued upon repurchase of any Debenture or Debentures. If more than one Debenture shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issued upon such repurchase shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions thereof) to be so repurchased. Instead of any fractional share of Common Stock which would otherwise be issued on the repurchase of any Debenture or Debentures (or specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Quoted Price of the Common Stock as of the Trading Day preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Debentures shall be made without charge to the Holder of Debentures being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Debentures represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Debentures being repurchased, and no such issuance or delivery shall be made unless the Persons requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes Debentures delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.82.15 hereof.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.05, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the certificate required by Section 2.03 shall be delivered, and the form of such certificate. In addition, at least two Business Days preceding the Repurchase Date, the Company shall give to all Holders of the Securities, in the manner provided in Section 1.05, notice specifying whether the Repurchase Price will be payable in cash or Common Stock and shall deliver a copy of such notice to the Trustee. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee or any Paying Agent on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in Common Stock, the name or names (with addresses) in which the certificate or certificates for Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee or the Paying Agent the Repurchase Price in cash or Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash, in the case of Securities, to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date, in each case according to the terms and provisions of Article III.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m.the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, New York City time however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the recordholder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional Common Share which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a Common Share is the Closing Price Per Share of the Common Stock on the last Trading Day prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If any Common Stock to be issued upon repurchase of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued or delivered upon repurchase, the Company covenants that it will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be; provided, however, that nothing in this Section shall be deemed to affect in any way the obligations of the Company to repurchase Securities as provided in this Article and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, shall be paid in cash for payment to the holder on the repurchase datecash.
(fj) If the The Company is unable to covenants that all Common Stock which may be issued upon repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall Securities will upon issue be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseduly and validly issued and fully paid and nonassessable.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Convertible Subordinated Notes Agreement (America Online Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2, on On or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at shall give notice to the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice Holder (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock; and
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and
(8) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right, a holder shall the Holder must deliver to the Trustee on or before Company, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date, (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Security with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Security to be repurchased (and, if the Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, ) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Security and (ii) surrender the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer Security subject to the Company. Election of Change in Control Purchase Notice.
(d) If the Security (or portion thereof) surrendered for repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business not have been repurchased on the Business Day prior to following the repurchase date.
(c) If Repurchase Date, the Company fails to repurchase on Repurchase Price in respect of the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Business Day following the Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of Repurchase Price and any such Note accrued interest shall have been paid or duly provided for.
(de) Any Note that is to be repurchased only issuance of shares of Common Stock in part respect of the Repurchase Price shall be surrendered deemed to have been effected immediately prior to the Trustee duly endorsed close of business on the Repurchase Date and the person or persons in whose name or names any certificate or certificates for transfer shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(f) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of the Security. If any fractional share of stock otherwise would be issuable upon repurchase of the Security, the Company shall make an adjustment therefor by paying to the Company and accompanied by appropriate evidence Holder thereof an amount of genuineness and authority satisfactory cash calculated at the price per share at which the Common Stock is valued for purposes of Section 7.01. ----
(g) The issue of stock certificates on repurchase of the Security shall be made without charge to the Holder for any tax in respect of the issue thereof. The Company shall not, however, be required to pay any tax that may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing)Holder, and the Company shall execute, not be required to issue or deliver any such stock certificate unless and until the Trustee person or persons requesting the issue thereof shall authenticate and deliver have paid to the holder Company the amount of such Note without service charge, a new Note tax or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal shall have established to and in exchange for the unrepurchased portion satisfaction of the principal of the Note so surrenderedCompany that such tax has been paid.
(eh) On or prior Notwithstanding anything to 1:00 p.m.the contrary in this Section 7.03, New York City the ---- Company shall not be required to give the Company Notice following the occurrence of a Change in Control if, in the manner, at the time on and otherwise in compliance with the Repurchase Daterequirements set forth herein regarding the Company's obligation to offer to repurchase the Security following the occurrence of a Change in Control, (A) another Person makes an offer to repurchase the Security by giving a notice containing the information set forth in clauses (i) through (v) of Section 7.03(a) to the Holder, (B) such Person repurchases the Security, and (C) such Person makes all payments with respect thereto. This Section 7.03(h) shall not relieve the Company of any of its obligations under this ------- Security; provided, however, that if another Person makes the offer to repurchase this Security as set forth in this Section, the Company shall deposit with the Trustee or with a paying agent (or, if not be obligated to give the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateNotice.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Securities and to the Notes a notice Trustee (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion Price then procedures for withdrawing a Change in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and Control Purchase Notice;
(vii) the place or places where Notes may such Securities are to be surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities. No failure Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, the Company shall cause a copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right, a holder shall Holder must deliver to the Trustee on or before a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date, (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Securities and (ii) surrender the Notes Securities subject to the Change in Control Purchase Notice.
(d) Unless the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock, on or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee, a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall repurchase all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the repurchase right Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excludingacting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in ---- respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business shall not have been repurchased on the Business Day prior to following the repurchase date.
(c) If Repurchase Date, the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal Repurchase Price in respect of such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Business Day following the Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of Repurchase Price and any such Note accrued interest shall have been paid or duly provided for.
(df) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to or any such Paying Agent (or if the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed byis acting as its own Paying Agent, the holder thereof (or his attorney duly authorized in writing), Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes Any Holder that has delivered for repurchase a Change in Control Purchase Notice shall be delivered have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to be canceled in accordance with the provisions close of Section 2.8.business on the Business Day immediately preceding the
Appears in 1 contract
Sources: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar day following date that is 30 Business Days after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail give notice to all holders Holders of record of Outstanding Securities and to the Notes a notice Trustee (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description the date of such Change in Control and, briefly, the Repurchase Eventevents causing such Change in Control;
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right Change in Control Purchase Notice (as defined below) must be exerciseddelivered;
(5iii) the last date by which the election to require repurchase, if submitted, must be revokedRepurchase Date;
(6iv) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if anyCompany in cash or by delivery of shares of Common Stock;
(7v) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and;
(8) vi) the Conversion Price then procedures for withdrawing a Change in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and Control Purchase Notice;
(vii) the place or places where Notes may such Securities are to be surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the requirements set forth in the Securities. No failure 52 Promptly after giving the Company Notice to the Holders of Outstanding Securities and to the Trustee, the Company shall cause a copy of the Company Notice to give the foregoing notices be published in The Wall Street Journal or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity another daily newspaper of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall governnational circulation.
(b) If any Senior Indebtedness is outstanding at the time of the occurrence of a Change in Control, and such Senior Indebtedness prohibits by its terms the Company's repurchase of its Securities upon the occurrence of a Change in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness or offer to repay in full all obligations and terminate all commitments under or in respect of all such Senior Indebtedness and repay such Senior Indebtedness owed to each holder thereof who has accepted such offer; or
(ii) obtain the requisite consents under all such Senior Indebtedness to permit the Company to repurchase the Securities in accordance herewith.
(c) To exercise a repurchase right, a holder shall Holder must deliver to the Trustee on or before a Paying Agent at an office or agency maintained by the Company for such purpose in the Borough of Manhattan, The City of New York, prior to the close of business on or before the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date, (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Change in Control Purchase Notice"), which Repurchase Notice notice shall set forth (A) the name of the holderHolder, (B) the certificate numbers of the Securities with respect to which the repurchase right is being exercised, (C) the principal amount of the Notes Securities to be repurchased (and, if any Security is to be repurchased in part, the portion of the principal amount thereof to be repurchased, which shall be in integral multiples of $1,000) and (D) a statement that an election to exercise the repurchase right is being made thereby, thereby pursuant to the applicable provisions of the Securities and (ii) surrender the Notes Securities subject to the Change in Control Purchase Notice.
(d) Unless the Company has elected to pay the Repurchase Price by delivery of shares of Common Stock, on or prior to the Repurchase Date the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03) an amount of money sufficient to pay the Repurchase ---- Price of the Securities that are to be repaid on the Repurchase Date. On the Repurchase Date, the Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company) shall deliver, on behalf of the Company, the Repurchase Price for all such Securities validly tendered prior to such date. In the event that a Holder has previously delivered a Change in Control Purchase Notice, but failed to surrender the Security with respect to which such Change in Control Purchase Notice relates, then so long as either (i) the repurchase right Company has elected to pay the Repurchase Price by delivery of shares of Common Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excludingacting as its own Paying Agent, the Company segregates and holds in trust as provided in Section 9.03) money sufficient to pay the Repurchase Price in ---- respect of such Security, then such Security shall cease to be Outstanding for the purposes of this Indenture on the Repurchase Date and all rights of the Holder thereof other than the right to receive the Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business shall not have been repurchased on the Business Day prior to following the repurchase date.
(c) If Repurchase Date, the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal Repurchase Price in respect of such Notes Security shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Business Day following the Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of Repurchase Price and any such Note accrued interest shall have been paid or duly provided for.
(df) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to or any such Paying Agent (or if the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed byis acting as its own Paying Agent, the holder thereof (or his attorney duly authorized in writing), Company) and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasethat was not repurchased.
(g) All Notes Any Holder that has delivered for repurchase a Change in Control Purchase Notice shall be delivered have the right to withdraw such notice by delivery of a written notice of withdrawal to the Trustee or any such Paying Agent prior to the close of business on the Business Day immediately preceding the Repurchase Date. The notice of withdrawal shall state the principal amount and the certificate numbers of the Securities as to which the withdrawal notice relates and the principal amount, if any, that remains subject to the Change in Control Purchase Notice. A Security in respect of which a Holder has exercised its right to require repurchase upon a Change in Control may thereafter be canceled converted into Common Stock only if, and at such time as, such Holder withdraws its Change in Control Purchase Notice in accordance with the provisions preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby.
(i) No fractional shares of Common Stock or scrip representing fractional shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issued upon repurchase shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so repurchased from such Holder. If any fractional share of stock otherwise would be issuable upon repurchase of any Security or Securities, the Company shall make an adjustment therefor by paying to the Holder thereof an amount of cash calculated at the price per share at which the Common Stock is valued for purposes of Section 2.8.11.01. -----
(j) The issue of stock certificates on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for any tax in respect of the issue
Appears in 1 contract
Sources: Indenture (Interliant Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) 1. Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Notes, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase Designated Event, the Company or, at the written request and expense of the Company, the Trustee, shall mail give to all holders Holders of record of the Notes a Notes, notice (the "Company “Designated Event Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Designated Event and of the repurchase right set forth herein arising as a result thereof. The If the Company gives such Designated Event Notice to Holders, it shall also deliver a copy of give such notice of a repurchase right Designated Event Notice to the Trustee. The Company Each Designated Event Notice shall contain describe such Designated Event, shall state that as a result of the following informationoccurrence of such Designated Event the Holder has the right to require the Company to repurchase the Holder’s Notes in whole or in part and shall state:
(1i) a brief description of the Designated Event Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 3.15(b),
(5iii) the last date by which the election to require repurchase, if submitted, must be revoked;Designated Event Repurchase Price,
(6) the Repurchase Price and the Additional Repurchase Amount, if any;
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Notes are to be surrendered for payment of the Designated Event Repurchase Price and accrued and unpaid interest, if any, to, but excluding, the Designated Event Repurchase Date,
(8) v) that on the Designated Event Repurchase Date the Designated Event Repurchase Price, and accrued and unpaid interest, if any, will become due and payable upon each such Note designated by the Holder to be repurchased (unless such Holder exercises its right to convert such Note pursuant to Article X of this Indenture), and that interest thereon shall cease to accrue on and after said date with respect to any Note designated by the Holder to be repurchased,
(vi) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where such Notes may be surrendered for conversion, and
(vii) the place or places that the notice described in Section 3.15(b) shall be delivered, and the form of such notice. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Article III are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice"), which Repurchase Notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Expressjet Holdings Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption of all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Notes, on or before the tenth (10th) 15th calendar day following after the occurrence of a Repurchase EventChange of Control, the Company or, at the written request (and expense) of the Company, the Trustee, shall mail to all holders Holders of record of the Notes a notice (the "“Company Notice"”) in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Each notice of a repurchase right to the Trustee. The Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price and for the Additional Repurchase AmountNotes, if any;and
(7iv) a description of the procedure which a holder Holder of Notes must follow to exercise a repurchase right; and
(8) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) . To exercise a repurchase right, a holder Holder of Notes shall deliver to the Company (or an agent designated by the Company for such purpose) and to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed Repurchase Date (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's Holder’s exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for the transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Notes with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior Repurchase Date. In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid the Repurchase Price in cash to the repurchase date.
(c) If the Company fails to repurchase Holder on the repurchase date any Repurchase Date, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Notes (or portions thereof) as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more predecessor Notes, registered as such at the close of business on the relevant Regular Record Date according to the terms and provisions of Article II of this Indenture. If any Note surrendered for repurchase shall not be so paid on the Repurchase Date, the principal of such Notes shall, until paid, shall bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) . Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his or her attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior . Prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent Paying Agent (or, if the Company is acting as its own paying agentPaying Agent, segregate and hold in trust as provided in Section 5.43.4 of this Indenture) an amount of money sufficient to pay the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as that are to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based repaid on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseRepurchase Date.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Quadramed Corp)
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities, are to be surrendered for payment of the Repurchase Price and accrued interest, if any,
(8) 5) that on the Repurchase Date the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion,
(7) the place or places that the certificate required by Section 2.2 shall be delivered, and the form of such certificate and the place or places that the Surrender Certificate required by Section 14.3(i) shall be delivered, and
(8) the Cusip number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase purchase right has been properly exercised; PROVIDED, then HOWEVER, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5 1/4% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(ef) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase DateDate and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; PROVIDED, HOWEVER, that any surrender for repurchase on a date when the stock transfer books of the Company shall deposit with be closed shall constitute the Trustee Person or with a paying agent (or, if Persons in whose name or names the Company is acting certificate or certificates for such shares are to be issued as its own paying agent, segregate and hold in trust as provided in Section 5.4) the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchaseDate.
(g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(j) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes Holders a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published in a newspaper of general circulation in The Borough of Manhattan, The City of New York and the County of Suffolk, The City of Boston, Massachusetts. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(63) the Repurchase Price and the Additional Repurchase Amount, if any;Price,
(74) a description of the procedure which a holder Holder must follow to exercise a repurchase right; , and
(8) 5) the Conversion Price conversion price then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversionconversion or repurchase. In addition, at least two Business Days preceding the Repurchase Date, the Company shall cause to be published, in a newspaper of general circulation in The Borough of Manhattan, The City of New York, and the County of Suffolk, The City of Boston, Massachusetts a notice specifying whether the Repurchase Price will be payable in cash. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toexecuted by the Holder and shall be irrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business second Trading Day prior to preceding the repurchase dateRepurchase Date.
(c) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid the Repurchase Price in cash as provided above, to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more predecessor Securities, registered as such at the close of business on the relevant Regular Record Date according to the terms and provisions of Article 3.
(d) If any Security surrendered for repurchase shall not be so paid on the Repurchase Date, the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note Security and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security shall have been paid or duly provided for.
(de) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder Holder of such Note Security without service charge, a new Note Security or Notes, containing identical terms and conditionsSecurities, of any authorized denomination as requested by such holder Holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date.
(f) If the Company is unable to repurchase on the repurchase date all of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchase.
(g) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
Appears in 1 contract
Sources: Indenture (Analog Devices Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereofthereof and the Company shall issue a Press Release including the information required to be included in such Company Notice hereunder. The Company shall also deliver a copy of such notice of a repurchase right Company Notice to the Trustee. The Each Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which that a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 13.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to immediately preceding the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase Repurchase Date on the date any Notes (or portions thereof) that is 45 days after the date of the Company's notice, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 3.75% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note Security that is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty that may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
Appears in 1 contract
Sources: Indenture (Teradyne Inc)
Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption redemption, all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 30th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. The Company Notice Each notice of a repurchase right shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;,
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 15.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holderHolder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) 30th day after the date of the Company Notice was mailed (i) irrevocable written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to be repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 5% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, -126- and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
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Notices; Method of Exercising Repurchase Right, Etc. (a1) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Outstanding Securities, on or before the tenth (10th) calendar 30th day following after the occurrence of a Repurchase EventChange in Control, the Company or, at the written request and expense of the CompanyCompany on or before the 15th day after such occurrence, the Trustee, shall mail give to all holders Holders of record of Securities, in the Notes a manner provided in Section 1.6, notice (the "Company NoticeOffer to Purchase") in the form as prepared by the Company of the occurrence of the Repurchase Event Change of Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such Offer to Purchase to the Trustee. Each notice of a repurchase right to the Trustee. The Company Notice shall contain the following informationstate:
(1i) a brief description of the Repurchase Event;Date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4ii) the date by which the repurchase right must be exercised;exercised pursuant to Section 14.3(2),
(5) the last date by which the election to require repurchase, if submitted, must be revoked;
(6iii) the Repurchase Price, and whether the Repurchase Price and shall be paid by the Additional Repurchase Amount, if any;Company in cash or by delivery of shares of Common Stock,
(7iv) a description of the procedure which a holder Holder must follow to exercise a repurchase right; and, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest (including Liquidated Damages, if any), if any to the Repurchase Date,
(8) v) that on the Repurchase Date the Repurchase Price, and accrued interest (including liquidated Damages, if any), if any to the Repurchase Date, will become due and payable upon each such Security designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date,
(vi) the Conversion Price Rate then in effect, the date on which the right to convert the principal amount of the Notes Securities to be repurchased will terminate and the place or places where Notes such Securities may be surrendered for conversion, and
(vii) the place or places that the Security certificate with the Election of Holder to Require Repurchase as specified in Section 2.2 shall be delivered, and if the Security is a Restricted Securities Certificate the place or places that the Surrender Certificate required by Section 14.3(9) shall be delivered. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's Holder' s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of NotesSecurities. If any of the foregoing provisions or other provisions of this Article XIV are inconsistent with applicable law, such law shall govern.
(b2) To exercise a repurchase right, a holder Holder shall deliver to the Trustee on or before the close date that is five Business Days prior to the Repurchase Date of business on the thirty-fifth (35th) day after the Company Notice was mailed Offer to Purchase (i) written notice to the Company (or agent designated by the Company for such purpose) of the holderHolder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holderHolder, the principal amount of the Notes Securities to be repurchasedrepurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes Securities with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder Such written notice shall be revocable at any time prior toirrevocable, but excluding, except that the right of the Holder to convert the Securities with respect to which the repurchase date, by delivering written notice to that effect to the Trustee prior to right is being exercised shall continue until the close of business on the Business Day prior to the repurchase dateRepurchase Date.
(c3) If In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company fails shall pay or cause to repurchase be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the repurchase date any Notes (or portions thereof) Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the repurchase right has been properly exercised; provided, then however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Notes Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date Repurchase Date at the rate borne by the Note of 7.0% per annum, and each such Note Security shall be remain convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note Security (or portion thereof, as the case may be) shall have been paid or duly provided for.
(d5) Any Note that Security which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to (with, if the Company and accompanied by appropriate evidence or the Trustee so requires, due endorsement by, or a written instrument of genuineness and authority transfer in form satisfactory to the Company and the Trustee duly executed by, the holder Holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver make available for delivery to the holder Holder of such Note Security without service charge, a new Note Security or NotesSecurities, containing identical terms and conditions, of any each in an authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note Security so surrendered.
(e6) On or Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to 1:00 p.m., New York City time the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Security or Securities, the Company shall deposit with will deliver to the Trustee or with applicable Holder its check for the current market value of such fractional share. The current market value of a paying agent (orfraction of a share is determined by multiplying the current market price of a full share by the fraction, if and rounding the Company result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase dateDate.
(f) If 8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company is unable shall not be required to repurchase on the repurchase date all pay any tax or duty which may be payable in respect of (i) income of the Notes Holder or (ii) any transfer involved in the issuance or portions thereof) as delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to which the repurchase right Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been properly exercised, the aggregate amount of Notes the Company may repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based on the principal amount of such Note, in proportion to the aggregate amount of Notes surrendered for repurchasepaid.
(g9) If shares of Common Stock to be delivered upon repurchase of a Security are to be registered in a name other than that of the beneficial owner of such Security, then such Holder must deliver to the Trustee a Surrender Certificate, dated the date of surrender of such Restricted Security and signed by such beneficial owner, as to compliance with the restrictions on transfer applicable to such Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or other agents shall be required to register in a name other than that of the beneficial owner shares of Common Stock issued upon repurchase of any such Restricted Security not so accompanied by a properly completed Surrender Certificate.
(10) All Notes Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in accordance with the provisions of Section 2.83.9.
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Notices; Method of Exercising Repurchase Right, Etc. (a) Unless the Company shall have theretofore called for redemption all of the outstanding Notes and deposited or set aside an amount of money sufficient to redeem such Notes on the redemption date as set forth in Section 3.2Notes, on or before the tenth fifteenth (10th15th) calendar day following after the occurrence of a Repurchase Event, the Company or, at the written request of the Company, the Trustee, shall mail to all holders of record of the Notes a notice (the "Company Notice") in the form as prepared by the Company of the occurrence of the Repurchase Event and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the TrusteeTrustee and cause a copy of such notice of a repurchase right, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. The Company Notice shall contain the following information:
(1) a brief description of the Repurchase Event;repurchase date,
(2) the repurchase date;
(3) the CUSIP number(s) of the Note(s) subject to the repurchase right;
(4) the date by which the repurchase right must be exercised;,
(53) the last date by which the election to require repurchase, if submitted, must be revoked;
(64) the Repurchase Price and whether the Additional Repurchase AmountPrice shall be payable in cash or Common Stock and, if anypayable in Common Stock, the method of calculating the amount of the Common Stock to be delivered upon the repurchase as provided in Section 16.3(a);
(75) a description of the procedure which a holder must follow to exercise a repurchase right; and
, and (8) 6) the Conversion Price then in effect, the date on which the right to convert the principal amount of the Notes to be repurchased will terminate and the place or places where Notes may be surrendered for conversion. No failure of the Company to give the foregoing notices or defect therein shall limit any holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to the Trustee on or before the close of business on the thirty-fifth (35th) day after the Company Notice was mailed delivered (i) written notice to the Company (or agent designated by the Company for such purpose) of the holder's exercise of such right in substantially the form attached hereto as Exhibit C (the "Repurchase Notice")right, which Repurchase Notice notice shall set forth the name of the holder, the principal amount of the Notes to be repurchased, a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised, duly endorsed for transfer to the Company. Election of repurchase by a holder shall be revocable at any time prior to, but excluding, the repurchase date, by delivering written notice to that effect to the Trustee prior to the close of business on the Business Day prior to the repurchase date.
(c) If the Company fails to repurchase on the repurchase date any Notes (or portions thereof) as to which the repurchase right has been properly exercised, then the principal of such Notes shall, until paid, bear interest to the extent permitted by applicable law from the repurchase date at the rate borne by the Note and each such Note shall be convertible into Common Stock in accordance with this Indenture (without giving effect to Section 16.2(b)) until the principal of such Note shall have been paid or duly provided for.
(d) Any Note that which is to be repurchased only in part shall be surrendered to the Trustee duly endorsed for transfer to the Company and accompanied by appropriate evidence of genuineness and authority satisfactory to the Company and the Trustee duly executed by, the holder thereof (or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, of any authorized denomination as requested by such holder in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(e) On or prior to 1:00 p.m., New York City time on the Repurchase Daterepurchase date, the Company shall deposit with the Trustee or with a paying agent (or, if the Company is acting as its own paying agent, segregate and hold in trust as provided in Section 5.4) the Repurchase Price and Additional Repurchase Amount, if any, in cash for payment to the holder on the repurchase date; provided that if payment is to be made in cash, such cash -------- payment is made on the repurchase date it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m., New York City time, on such date; provided further that if the Repurchase Price is to be paid in -------- ------- shares of Common Stock, such shares of Common Stock are to be paid as promptly after the repurchase date as practicable.
(f) If Any issuance of shares of Common Stock in respect of the Company is unable Repurchase Price shall be deemed to repurchase have been effected immediately prior to the close of business on the repurchase date all and the person or persons in whose name or names any certificate or certificates for shares of the Notes (or portions thereof) as to which the repurchase right has been properly exercised, the aggregate amount of Notes the Company may Common Stock shall be issuable upon such repurchase shall be allocated pro rata among each Note (or portion thereof) surrendered for repurchase, based deemed to have become on the principal amount repurchase date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the person or persons in whose name or names the certificate or certificates for such Note, in proportion shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the aggregate amount of Notes surrendered for repurchaserepurchase date.
(g) No fractions of shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable holder its check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price of the Common Stock on the Trading Day immediately preceding the repurchase date.
(h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid.
(i) All Notes delivered for repurchase shall be delivered to the Trustee to be canceled in accordance with the provisions of Section 2.8.
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