Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15, 2011, March 15, 2014 and March 15, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date. (b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable: (i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1; (ii) the Purchase Date; (iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common Stock; (iv) the name and address of the Paying Agent and the Conversion Agent; (v) the Conversion Rate and any adjustments thereto; (vi) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture; (vii) that the Notes must be surrendered to the Paying Agent to collect payment; (viii) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii); (ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights; (x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes; (xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal; (xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and (xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also: (1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and (2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice. (c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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. (d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon: (i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b); (ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act; (iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration; (iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and (v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section 4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Willbros Group Inc)
Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes Securities not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15February 1, 2011, March 15February 1, 2014 and March 15February 1, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes Securities at a purchase price in cash equal to 100% of the principal amount thereof plus any accrued and unpaid interest, Additional Amounts and Additional Interest, if any, cash interest to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, interest to the Holder holder of the repurchased Note Security and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 20 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Security Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1Article XIII;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) the conversion rights of the Securities, if any, the Conversion Rate and any adjustments thereto, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Securities;
(vi) that the Notes Securities as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII Article XIII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes Security as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xiixi) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes Securities surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiiixii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's request, the Trustee shall give the Company Notice notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes Securities is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make publicly announce the occurrence of the Fundamental Change, including a Public Notice statement to the effect that Holders of Securities have a repurchase right as a result thereof, and shall publish a notice containing all information specified in the written notice provided to Holders pursuant to this Section 4.1(b) in a newspaper of general circulation in New York, New York, or publish such information on the Company's website, or through such other public medium that the Company Noticemay use at such time.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 20 Business Days prior to the relevant Purchase Date until the close of business on the second fifth Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial certificate number or numbers of the Note Security or Notes Securities which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note Security which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note Security to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note Security if the principal amount of such portion is $1,000 or an integral multiple thereofof $1,000. Provisions of this Indenture that apply to the purchase of all of a Note Security pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such NoteSecurity. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Optional Put. (a) Each Holder Securities shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require be purchased by the Company to purchasefor cash on January 15, and upon 2011 (the exercise "Optional Repurchase Date") at a price of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each per $1,000 of March 15, 2011, March 15, 2014 and March 15, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes Principal Amount at a purchase price equal to 100% of the principal amount Issuance plus any accrued and unpaid interest, Additional Amounts cash interest (including Contingent Cash Interest and Additional Interest, if any, to, ) to but excluding, not including the Purchase Optional Repurchase Date (the "PURCHASE PRICEOptional Repurchase Price"). In , at the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to option of the Holder of the repurchased Note and not the Holder on the Regular Record Datethereof.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if On a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may date not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later less than 22 20 Business Days prior to each Purchase the Optional Repurchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder all Holders at its address their addresses shown in the Security Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a the form of Purchase an Optional Repurchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i1) the date by which the Purchase Optional Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.11402 must be given;
(ii2) the Purchase Optional Repurchase Date;
(iii3) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockOptional Repurchase Price;
(iv4) the name and address of the each Paying Agent and the Conversion Agent;
(v5) the Conversion Rate and any adjustments thereto;
(vi6) that the Notes Securities as to which a Purchase an Optional Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII Article IV of this Indenture only if to the Purchase extent that the Optional Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix7) the procedures that the Holder must follow to exercise its rights under this Section 4.1 1501 and a brief description of such rights;
(x8) that Securities must be surrendered to the Paying Agent to collect payment of the Optional Purchase Price and interest, if any;
(9) briefly, the conversion rights of the Notes, if anySecurities, and that the Holder must satisfy the requirements set forth in the this Indenture in order to convert the NotesSecurities;
(xi10) the procedures for withdrawing a Purchase an Optional Repurchase Notice, including a form of notice of withdrawal;
(xii11) that, unless the Company defaults in making payment of such Purchase Optional Repurchase Price, cash interest (including any Contingent Cash Interest and Additional Interest) and Additional Amounts), if any, and Principal Accretion on Notes Securities surrendered for purchase by the Company shall will cease to accrue on and after the Purchase Optional Repurchase Date; and
(xiii12) the CUSIP number(s) number of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's request, the Trustee or the Paying Agent shall give the Company Notice such notice in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice must be given to the Holders in accordance with this Section 4.1(b); providedall cases, further, that the text of the Company Notice such notice shall be prepared by the Company. If any of the Notes Securities is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase repurchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b)providing such notice, the Company shall make will publish a Public Notice notice containing all this information specified in a newspaper of general circulation in the City of New York or publish the information on its website or through such other public medium as the Company Noticemay use at that time.
(c) A Holder may exercise its rights specified in clause subsection (a) of this Section 4.1 1501 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a an "PURCHASE NOTICEOptional Repurchase Notice") to the any Paying Agent at any time from the opening of business on the date that is 22 20 Business Days prior to the relevant Purchase Optional Repurchase Date until the close of business on the second Business Day prior to such Purchase Optional Repurchase Date. The Purchase Optional Repurchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated SecuritiesSecurities have been issued, the serial certificate number or numbers of the Note Security or Notes Securities which the Holder shall will deliver to be purchased (if not certificated, the notice must comply with Applicable Proceduresappropriate Depositary procedures), (iiiii) the portion of the principal amount Principal Amount at Issuance of the Note Security which the Holder shall will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iviii) that such Note Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note Security to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Optional Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Optional Repurchase Price therefor; provided, however, that such Purchase Optional Repurchase Price shall be so paid pursuant to this Section 4.1 1501 only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Optional Repurchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.11501, a portion of a Note Security if the principal amount Principal Amount at Issuance of such portion is $1,000 or an integral multiple thereofof $1,000. Provisions of this Indenture that apply to the purchase of all of a Note Security pursuant to Section 4.1 Sections 1501 through Section 4.7 1506 also apply to the purchase of such portion of such NoteSecurity. Any purchase by the Company contemplated pursuant to the provisions of this Section 1501 shall be consummated by the delivery of the consideration to be received by the Holder (together with accrued and unpaid cash interest, if any) promptly following the later of the Optional Repurchase Date and the time of delivery of the Security. The Optional Repurchase Price may only be paid in cash. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Optional Repurchase Notice contemplated by this Section 1501 shall have the right to withdraw such Optional Repurchase Notice at any time prior to the close of business on the Optional Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 1502. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Optional Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase Optional 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of The Company may at its option add additional dates on which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the right to require the Company elected to pay all repurchase Securities. The Company would be required to provide 60 days advance notice to Holders of its nonbinding intention to add additional dates.
(e) There shall be no purchase of any Securities pursuant to this Section 1501 if there has occurred (prior to, on or such specified percentageafter, as the case may be, the giving, by the Holders of such Securities, of the Purchase Price required Optional Repurchase Notice) and is continuing an Event of such Securities Default (other than a default in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of Optional Repurchase Price and any accrued and unpaid cash interest with respect to such Securities). The Paying Agent will promptly return to the Purchase Price under respective Holders thereof any Securities (Ax) the Exchange Act and (B) the Securities Act, unless with respect to which an Optional Repurchase Notice has been withdrawn in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity compliance with this Indenture and or (By) held by it during the shares continuance of Common Stock to be issued by an Event of Default (other than a default in the Company in payment of the specified percentage of Optional Repurchase Price and any accrued and unpaid cash interest with respect to such Securities) in which case, upon such return, the Purchase Price in Optional Repurchase Notice with respect of Securities thereto shall be deemed to have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cashwithdrawn.
Appears in 1 contract
Sources: Indenture (WCHS Licensee LLC)
Optional Put. (a) Each Securities shall be repurchased by the Company at the option of the Holder shall have the righton December 6, 2007, December 1, 2010, December 1, 2012 and December 1, 2017 (each, a "REPURCHASE DATE"), at the Holder's option, but subject a repurchase price equal to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15, 2011, March 15, 2014 and March 15, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price equal to 100% of the principal amount those Securities plus accrued and unpaid interest, Additional Amounts interest and Additional InterestAmounts, if any, to, but excludingnot including, the Purchase such Repurchase Date (the "PURCHASE REPURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but , subject to satisfaction by or on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to behalf of the Holder of the repurchased Note and not the Holder on the Regular Record Daterequirements set forth in Section 4.1(c).
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days 20 days prior to each Purchase Repurchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase repurchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, (and to beneficial owners as required by applicable law). The notice shall include a form of Purchase Repurchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1repurchase right;
(ii) the Purchase Repurchase Date;
(iii) the Purchase Repurchase Price;
(iv) whether the Repurchase Price will be paid in cash or Ordinary Shares, or a combination thereof and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereofcombination, the percentages percentage of the Purchase Price of such Notes in respect of which it will pay cash and Common Stockeach;
(ivv) if the Company elects to pay the Repurchase Price in Ordinary Shares or a combination of cash and Ordinary Shares, that the number of Ordinary Shares each Holder will receive will equal the portion of the Repurchase Price to be paid in Ordinary Shares divided by 97.5% of the Market Price of one Ordinary Share;
(vi) if the Company elects to pay the Repurchase Price in Ordinary Shares or a combination of cash and Ordinary Shares, the method of calculating the Market Price of the Ordinary Shares;
(vii) state that because the Market Price of one Ordinary Share will be determined prior to the Repurchase Date, Holders of the Securities will bear the market risk that the Ordinary Shares to be received will decline in value between the date such Market Price is determined and the Repurchase Date;
(viii) the name and address of the Paying Agent and the Conversion Agent;
(vix) the Conversion Rate and any adjustments thereto;
(vix) that the Notes Securities as to which a Purchase Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE Article XII of this Indenture only if the Purchase Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viixi) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viiixii) that the Purchase Repurchase Price for any Notes Security as to which a Purchase Repurchase Notice has been duly given and not withdrawn shall will be paid promptly following the later of the Purchase Repurchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii4.1(b)(xi);
(ixxiii) the procedures the Holder must follow to exercise its rights put right under this Section 4.1 and a brief description of such rights4.1;
(xxiv) briefly, the conversion rights of the Notesrights, if any, and that of the Holder must satisfy the requirements set forth in the Indenture in order to convert the NotesSecurities;
(xixv) the procedures for withdrawing a Purchase Repurchase Notice, including a form of notice of withdrawal;
(xiixvi) that, unless the Company defaults in making payment of such Purchase Repurchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes Securities surrendered for purchase repurchase by the Company shall will cease to accrue on and after the Purchase Repurchase Date; and
(xiiixvii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's request, the Trustee shall give the Company Notice notice of repurchase right in the Company's name and at the Company's expense; providedPROVIDED, howeverHOWEVER, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of repurchase right must be given to the Holders in accordance with this Section 4.1(b); providedPROVIDED, furtherFURTHER, that the text of the Company Notice notice of repurchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(c) A Holder may exercise its rights right specified in clause (aSection 4.1(a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights repurchase (a "PURCHASE REPURCHASE NOTICE") to the Paying Agent at any time from during the opening of business period beginning at 9:00 a.m., New York City time, on the date that is 22 20 Business Days prior to preceding the relevant Purchase Repurchase Date until the close of business 5:00 p.m., New York City time, on the second Business Day prior to immediately preceding such Purchase Repurchase Date. The Purchase Notice delivered by a Holder shall state , stating:
(i) the relevant Purchase Date, (ii) if certificated Securities, the serial certificate number or numbers of the Note or Notes Security which the Holder shall will deliver to be purchased repurchased or the appropriate Depositary procedures if Certificated Securities have not been issued;
(if not certificated, the notice must comply with Applicable Procedures), (iiiii) the portion of the principal amount of the Note Security which the Holder shall will deliver to be purchasedrepurchased, which portion must be in principal amounts of $1,000 or an integral multiple thereof, and of $1,000;
(iviii) that such Note Security shall be purchased repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in Section 6 of the Securities and in this Indenture; and
(iv) in the event the Company elects, pursuant to Section 4.2(b), to pay the Repurchase Price, in whole or in part, in Ordinary Shares but such portion of the Repurchase Price shall ultimately be paid to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in Ordinary Shares is not satisfied prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the relevant Repurchase Date, as set forth in Section 4.2(b), whether such Holder elects to (A) withdraw such Repurchase Notice as to some or all of the Securities to which such Repurchase Notice relates (stating the principal amount and certificate numbers, if any, of the Securities as to which such withdrawal shall relate), or (B) receive cash in respect of the entire Repurchase Price for all Securities (or portions thereof) to which such Repurchase Notice relates. Delivery The delivery of a Note such Security to the Paying Agent by book-entry transfer with, or physical at any time after delivery prior toof, on or after the applicable Purchase Date Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent is shall be a condition to the receipt by the Holder of the Purchase Repurchase Price therefor; providedPROVIDED, howeverHOWEVER, that such Purchase Repurchase Price shall be so paid pursuant to this Section 4.1 only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Repurchase Notice. If a Holder, as determined in such Holder's Repurchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the Companyterms of Section 4.3, fails to indicate such Holder's choice with respect to the election set forth in Section 4.1(c)(iv), such Holder shall be deemed to have elected to receive cash in respect of the entire Repurchase Price for all Securities subject to such Repurchase Notice in the circumstances set forth in such Section 4.1(c)(iv). The Company shall purchase repurchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if Security, so long as the principal amount of such portion is $1,000 or an integral multiple thereofof $1,000. Provisions of this Indenture that apply to the purchase repurchase of all of a Note pursuant to Section 4.1 through Section 4.7 Security also apply to the purchase repurchase of such portion of such NoteSecurity. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.1 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security. Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 4.1(c) shall have the right to withdraw such Repurchase Notice at any applicable time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 4.3. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes Securities not theretofore called for redemption, or any portion of the principal amount Principal Amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March December 15, 20112008, March December 15, 2014 2013 and March December 15, 2019 2018 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes Securities at a purchase price in cash equal to 100% of the principal amount Principal Amount plus any accrued and unpaid interest, Additional Amounts and cash interest (including any Additional Interest, if any, ) to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before Holder elects to require the corresponding Interest Payment DateCompany to purchase such Holder's Securities, the Company shall be required to pay accrued and unpaid interest, Additional Amounts interest and Additional Interest, if any, to the Holder holder of the repurchased Note Securities and not to the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) the Conversion Rate and any adjustments thereto;
(vi) that the Notes Securities as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE Article XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes Security as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the NotesSecurities, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the NotesSecurities;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts), if any, on Notes Securities surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's request, the Trustee shall give the Company Notice notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes Securities is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make publish a Public Notice notice containing all information specified in such Company Noticewritten notice in a newspaper of general circulation in New York, New York, or publish such information on the Company's website, or through such other public medium that reasonably could be expected to inform Holders of such information.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial certificate number or numbers of the Note Security or Notes Securities which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount Principal Amount of the Note Security which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note Security to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note Security if the principal amount Principal Amount of such portion is $1,000 or an integral multiple thereofof $1,000. Provisions of this Indenture that apply to the purchase of all of a Note Security pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such NoteSecurity. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Optional Put. (a) Each Subject to the provisions of this Article IV, each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15December 1, 20112009, March 15December 1, 2014 and March 15December 1, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price in cash equal to 100% of the principal amount of such Notes plus accrued and unpaid interest, Additional Amounts and interest (including Additional Interest, if any, ) to, but excludingnot including, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in Article XII in order to convert the Notes;
(vi) the Conversion Rate and any adjustments thereto;
(vivii) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiviii) that the Notes must be surrendered to the Paying Agent to collect paymentthe Purchase Price;
(viiiix) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security Notes as described in Section 4.1(b)(vii4.1(b)(viii);
(ixx) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts, if any, ) on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord comply with the procedures of the Depositary applicable to the purchase of Global SecuritiesApplicable Procedures. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities Notes entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated SecuritiesNotes, the serial certificate number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities Notes and this IndentureSection 4.1. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase Notice may be delivered or withdrawn and such Securities Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Cray Inc)
Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemptionNotes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March December 15, 2011, March 15, 2014 and March 15, 2019 2010 (each a the "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article ARTICLE IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each the Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) the Conversion Rate and any adjustments thereto;
(vi) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this IndentureIndenture or if there shall be a Default in the payment of the Purchase Price;
(vii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice shall be prepared by the Company. No failure of the Company to give the Company Notice shall limit any Holder's right to exercise its rights to require the Company to purchase such Holder's Securities pursuant to this ARTICLE IV. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 4.6 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Willbros Group Inc)
Optional Put. (a) Each Holder Notes shall have be repurchased by the rightCompany, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion option of the principal amount thereof that is equal to $1,000 or an integral multiple Holder thereof, as directed by such Holder pursuant to this Section 4.1on any of July 30, on each of March 152009, 2011, March 15July 30, 2014 and March 15July 30, 2019 (each each, a "PURCHASE DATERepurchase Date"). The Company shall be required to purchase such Notes , at a purchase repurchase price equal to 100% of the principal amount of those Notes plus accrued and unpaid interest, Additional Amounts and Additional Interest, if any, interest to, but excludingnot including, the Purchase such Repurchase Date (the "PURCHASE PRICERepurchase Price"). In , subject to satisfaction by or on behalf of the event that a Purchase Date is a date that is after any Regular Record Date but on or before Holder of the corresponding Interest Payment requirements set forth in Section 6.01(c).
(b) No later than 25 Business Days prior to each Repurchase Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail provide a written notice (the "COMPANY NOTICE") of the purchase repurchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable lawHolder. The notice shall include a form of Purchase Repurchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1repurchase right;
(ii) the Purchase Repurchase Date;
(iii) the Purchase Repurchase Price;
(iv) whether the Repurchase Price will be paid in cash or, if permitted hereunder, in Limited Voting Shares, or a combination of cash and Limited Voting Shares and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereofcombination, the percentages percentage of the Purchase Price of such Notes in respect of which it will pay cash and Common Stockeach;
(ivv) if the Company elects to pay the Repurchase Price in Limited Voting Shares or a combination of cash and Limited Voting Shares, that the number of Limited Voting Shares each Holder will receive will equal the portion of the Repurchase Price to be paid in Limited Voting Shares divided by the Trading Price of one Limited Voting Share;
(vi) if the Company elects to pay the Repurchase Price in Limited Voting Shares or a combination of cash and Limited Voting Shares, the method of calculating the Trading Price of the Limited Voting Shares;
(vii) that because the Trading Price of one Limited Voting Share will be determined prior to the Repurchase Date, Holders of the Notes will bear the market risk that the Limited Voting Shares to be received will decline in value between the date such Trading Price is determined and the Repurchase Date;
(viii) if the Notes then may be converted, the name and address of the Paying Agent and the Conversion Agent;
(v) , the Conversion Rate and any adjustments thereto;
(vi) , and that the Notes as to which a Purchase Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture Article Four only if the Purchase Repurchase Notice has been withdrawn in accordance with the terms of this First Supplemental Indenture;
(viiix) that the certificated Notes must be surrendered to the Paying Agent to collect payment;
(viiix) that the Purchase Repurchase Price for any Notes Note as to which a Purchase Repurchase Notice has been duly given and not withdrawn shall will be paid promptly following the later of the Purchase Repurchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii)Note;
(ixxi) the procedures the Holder must follow to exercise its rights right to require Notes be repurchased under this Section 4.1 and a brief description of such rights6.01;
(xxii) briefly, the conversion rights of the Notesrights, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert of the Notes;
(xixiii) the procedures for withdrawing a Purchase Repurchase Notice, including a form of notice of withdrawal;
(xiixiv) that, unless the Company defaults in making payment of such Purchase Repurchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes surrendered for purchase repurchase by the Company shall will cease to accrue on and after the Purchase Repurchase Date; and
(xiiixv) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice notice of repurchase right in the Company's name and at the Company's expense; provided, however, that expense if the Company makes has made such a request of the Trustee at least five three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of repurchase right must be given to the Holders Holder in accordance with this Section 4.1(b6.01(b); provided, further, that the text of the Company Notice notice of repurchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(c) A Holder may exercise its rights right specified in clause (aSection 6.01(a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights repurchase (a "PURCHASE NOTICERepurchase Notice") to the Paying Agent at any time from during the opening of business period beginning at 9:00 a.m., New York City time, on the date that is 22 20 Business Days prior to immediately preceding the relevant Purchase Repurchase Date until the close of business 5:00 p.m., New York City time, on the second Business Day prior to immediately preceding such Purchase Repurchase Date. The Purchase Notice delivered by a Holder shall state , stating:
(i) the relevant Purchase Date, (iicertificate number(s) if certificated Securities, the serial number or numbers of the Note or Notes which Note(s) that the Holder shall will deliver to be purchased repurchased or the appropriate Depositary procedures if Certificated Notes have not been issued;
(if not certificated, the notice must comply with Applicable Procedures), (iiiii) the portion of the principal amount of the Note which Note(s) that the Holder shall will deliver to be purchasedrepurchased, which portion must be $1,000 or an integral multiple thereof, and of $1,000;
(iviii) that such Note Note(s) shall be purchased repurchased by the Company on the Repurchase Date pursuant to the terms and conditions specified in the Securities Notes and in this First Supplemental Indenture; and
(iv) in the event the Company elects, pursuant to Section 6.02, to pay the Repurchase Price, in whole or in part, in Limited Voting Shares but such portion of the Repurchase Price shall ultimately be paid to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in Limited Voting Shares is not satisfied prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the relevant Repurchase Date, as set forth in Section 6.02, whether such Holder elects to (A) withdraw such Repurchase Notice as to some or all of the Notes to which such Repurchase Notice relates (stating the principal amount and certificate numbers, if any or the appropriate Depositary procedures, if applicable, of the Notes as to which such withdrawal shall relate), or (B) receive cash in respect of the entire Repurchase Price for all Notes (or portions thereof) to which such Repurchase Notice relates. Delivery The delivery of a Note such certificated Note, if applicable, to the Paying Agent by book-entry transfer with, or physical at any time after delivery prior toof, on or after the applicable Purchase Date Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent is shall be a condition to the receipt by the Holder of the Purchase Repurchase Price therefor; provided, however, that such Purchase Repurchase Price shall be so paid pursuant to this Section 4.1 6.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Repurchase Notice. If a Holder, as determined in such Holder's Repurchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the Companyterms of Section 6.03, fails to indicate such Holder's choice with respect to the election set forth in Section 6.01(c)(iv), such Holder shall be deemed to have elected to receive cash in respect of the entire Repurchase Price for all Notes subject to such Repurchase Notice in the circumstances set forth in such Section 6.01(c)(iv). The Company shall purchase repurchase from the Holder thereof, pursuant to this Section 4.16.01, a portion of a Note if Note, so long as the principal amount of such portion is $1,000 or an integral multiple thereofof $1,000. Provisions of this First Supplemental Indenture that apply to the purchase repurchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase repurchase of such that portion of that Note. Any repurchase by the Company contemplated pursuant to the provisions of this Section 6.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of book-entry transfer or delivery of the Note. Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by Section 6.01(c) shall have the right to withdraw such NoteRepurchase Notice at any applicable time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 6.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: First Supplemental Indenture (Four Seasons Hotels Inc)
Optional Put. (a) Each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, All or any a portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed Securities shall be repurchased by such Holder pursuant to this Section 4.1, the Company on each of March June 15, 20112010, March June 15, 2014 2013 and March June 15, 2019 2018 (each a each, an "PURCHASE DATEOptional Repurchase Date"). The Company shall be required to purchase such Notes ) at a purchase price equal to of 100% of the principal amount Accreted Principal Amount plus any accrued and unpaid interest, Additional Amounts interest (including Contingent Interest and Additional InterestAmounts) to but not including the Optional Repurchase Date (the "Optional Repurchase Price"), at the option of the Holder thereof. Any Securities purchased on June 15, 2010 by the Company will be paid for in cash only. Securities purchased on June 15, 2013 and June 15, 2018 by the Company may be purchased in cash, shares of Common Stock or a combination of cash and shares of Common Stock at the Company's option, provided, however that any accrued and unpaid interest (including Contingent Interest and Additional Amounts), if any, to, but excluding, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common Stock;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) the Conversion Rate and any adjustments thereto;
(vi) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts, if any, on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchasedcash. The Company's right to exercise its election to Purchase Notes purchase the Securities pursuant to this Section 4.1 Article Fifteen through the issuance of shares of Common Stock shall be conditioned upon:
upon (i1) the Company Company's not having given its Company notice of an election to pay entirely in cash and its giving of timely Company Notice notice of election to purchase all or a specified percentage of the Notes Securities with shares of Common Stock as provided in Section 4.1(b);
herein; (ii2) the registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Optional Repurchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act or the Exchange Act;
, in each case, if required for the initial issuance thereof; (iii3) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
; and (iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v4) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the shares of Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Optional Repurchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Optional Repurchase Price in respect of the Securities, will be validly issued, fully paid and nonassessablenon-assessable and, to the best of such counsel's knowledge, free from preemptive rights, and, in the case of such Officers' Officer's Certificate, stating that conditions (i1), (ii), (iii2) and (iv3) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii2) and (iii3) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Jakks Pacific Inc)
Optional Put. (a) Each Subject to the provisions of this Article IV, each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15December 1, 20112009, March 15December 1, 2014 and March 15December 1, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price in cash equal to 100% of the principal amount of such Notes plus accrued and unpaid interest, Additional Amounts interest (including Contingent Interest and Additional Interest, if any, ) to, but excludingnot including, the Purchase Date (the "PURCHASE PRICE"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as to the extent required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in ARTICLE XII in order to convert the Notes;
(vi) the Conversion Rate and any adjustments thereto;
(vivii) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiviii) that the Notes must be surrendered to the Paying Agent to collect paymentthe Purchase Price;
(viiiix) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security Notes as described in Section 4.1(b)(vii4.1(b)(viii);
(ixx) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Contingent Interest and Additional Interest) and Additional Amounts, if any, ) on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord comply with the procedures of the Depositary applicable to the purchase of Global SecuritiesApplicable Procedures. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities Notes entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary proceduresApplicable Procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated SecuritiesNotes, the serial certificate number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities Notes and this IndentureSection 4.1. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase Notice may be delivered or withdrawn and such Securities Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Synaptics Inc)
Optional Put. (ai) Each On June 1, 2013, June 1, 2018, June 1, 2023, June 1, 2028 and June 1, 2033 (each, an “Optional Put Repurchase Date”), each Holder shall have the right, at the such Holder's ’s option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, repurchase all of such Holder's Notes not theretofore called for redemption, ’s Securities or any portion of the principal amount Original Principal Amount thereof that is equal to $1,000 or an integral multiple thereofof $1,000, as directed by such Holder pursuant to this Section 4.1, on each of March 15, 2011, March 15, 2014 and March 15, 2019 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes for cash at a purchase repurchase price equal to 100% of the principal amount plus Accreted Principal Amount thereof, together with accrued and unpaid interest, Additional Amounts and Additional Interest, if any, Interest thereon to, but excluding, the Purchase such Optional Put Repurchase Date (the "PURCHASE PRICE"“Optional Put Repurchase Price”) (subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 11.08(a). In the event that ), unless such Optional Put Repurchase Date falls after a Purchase Date is a date that is after any Regular Record Date but and on or before prior to the corresponding Interest Payment Date, in which case the Company shall be required to pay the full amount of accrued and unpaid interest, Additional Amounts and Additional Interest, if any, Interest payable on such Interest Payment Date to the Holder of the repurchased Note and not the Holder record at 5:00 p.m., New York City time, on the corresponding Regular Record Date.
(bii) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 20 Business Days prior to each Purchase Optional Put Repurchase Date, the Company shall mail a written give notice (the "COMPANY NOTICE") of the purchase repurchase right by first class mail under Section 11.08(a)(i) (an “Optional Put Repurchase Offer”) to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder all record Holders at its address shown their addresses set forth in the Security Register of the Registrar, Security Registrar (and to beneficial owners as required by applicable law). The notice shall include a form of Purchase Notice notice to be completed by the Holder and returned to the Company in the event that the Holder elects such right to such repurchase (the “Optional Put Repurchase Notice”) and shall briefly state, as applicable:
(iA) the date by which the Purchase Optional Put Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1repurchase right;
(iiB) the Purchase Optional Put Repurchase Date;
(iiiC) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockOptional Put Repurchase Price;
(ivD) the name and address of the Paying Agent and the Conversion Agent;
(vE) the Conversion Rate and any adjustments theretoRate;
(viF) the conversion rights, if any, of the Securities;
(G) that the Notes Securities as to which a Purchase an Optional Put Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture Article 12 only if the Purchase Optional Put Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiH) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viiiI) that the Purchase Optional Put Repurchase Price for any Notes Security as to which a Purchase an Optional Put Repurchase Notice has been duly given and not withdrawn shall will be paid promptly following the later of the Purchase Optional Put Repurchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii)Security;
(ixJ) the procedures the Holder must follow to exercise its rights put right under this Section 4.1 and a brief description of such rights11.08(a);
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xiK) the procedures for withdrawing a Purchase an Optional Put Repurchase Notice, including a form of notice of withdrawal;
(xiiL) that, unless the Company defaults in making payment of such Purchase Optional Put Repurchase Price, interest (including any Additional Interest) and Additional Amounts, if any, Interest on Notes Securities surrendered for purchase repurchase by the Company shall will cease to accrue accrue, and Accreted Principal Amount of such Securities will cease to accrete, on and after the Purchase Optional Put Repurchase Date; and
(xiiiM) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's ’s request, the Trustee shall give the Company Notice Optional Put Repurchase Offer in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice Optional Put Repurchase Offer must be given to the Holders Holder in accordance with this Section 4.1(b11.08(a)(ii); provided, further, that the text of the Company Notice Optional Put Repurchase Offer shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(ciii) A Holder may exercise its rights right specified in clause (aSection 11.08(a)(ii) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") properly completed Optional Put Repurchase Notice to the Paying Agent at any time from during the opening of business period beginning at 9:00 a.m., New York City time, on the date that is 22 20 Business Days prior to immediately preceding the relevant Purchase Optional Put Repurchase Date until the close of business 5:00 p.m., New York City time, on the second Business Day prior to immediately preceding such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Optional Put Repurchase Date, stating:
(iiA) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), certificate numbers of Securities to be delivered for repurchase;
(iiiB) the portion of the principal amount Original Principal Amount of the Note which the Holder shall deliver Securities to be purchasedrepurchased, which portion must be $1,000 or an integral multiple of $1,000 thereof, and ; and
(ivC) that such Note the Securities shall be purchased repurchased by the Company pursuant to the terms and conditions specified in applicable provisions of the Securities and this Indenture. Delivery of a Note to the Paying Agent by The book-entry transfer or physical delivery prior toof such Security to the Paying Agent with, on or at any time after delivery of, the applicable Purchase Date Optional Put Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent is shall be a condition to the receipt by the Holder of the Purchase Optional Put Repurchase Price therefor; provided, however, that such Purchase Optional Put Repurchase Price shall be so paid pursuant to this Section 4.1 11.08(a) only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Optional Put Repurchase Notice, as determined by the Company. The Company shall purchase repurchase from the Holder thereof, pursuant to this Section 4.111.08(a), a portion of a Note if Security specified in the principal amount Optional Put Repurchase Notice, so long as the Original Principal Amount of such portion is $1,000 Original Principal Amount or an integral multiple thereofof $1,000 Original Principal Amount. Provisions of this Indenture that apply to the purchase repurchase of all of a Note pursuant to Section 4.1 through Section 4.7 Security also apply to the purchase repurchase of such portion of such NoteSecurity. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Optional Put Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Hercules Offshore, Inc.)
Optional Put. (ai) Each Holder Securities shall have be repurchased by the rightCompany, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion option of the principal amount thereof that is equal to $1,000 or an integral multiple Holder thereof, as directed by such Holder pursuant to this Section 4.1, on each of March November 15, 20112013, March November 15, 2014 2016 and March November 15, 2019 2021 (each each, a "PURCHASE DATE"“Repurchase Date”). The Company shall be required to purchase such Notes , at a purchase repurchase price in cash equal to 100% of the principal amount of the Securities to be repurchased plus accrued and unpaid interest, Additional Amounts and Additional Interest, if any, any to, but excluding, the Purchase such Repurchase Date (the "PURCHASE PRICE"“Repurchase Price”). In , subject to satisfaction by or on behalf of the event Holder of the requirements set forth in Section 3.08(a)(iii), provided, however, that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay such accrued and unpaid interest, Additional Amounts and Additional Interest, if any, will be paid not to the Holder submitting the Security for repurchase on the relevant Repurchase Date but instead to the Holder of record at the repurchased Note and not the Holder close of business on the Regular Record Datecorresponding record date.
(bii) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 20 Business Days prior to each Purchase Repurchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase repurchase right under Section 3.08(a)(i) (a “Purchase Offer”) by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, (and to beneficial owners as required by applicable law). The notice shall include a form of Purchase Notice notice to be completed by the Holder and returned to the Company in the event that the Holder elects such right to such repurchase (the “Repurchase Notice”) and shall briefly state, as applicable:
(i1) the date by which the Purchase Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1repurchase right;
(ii2) the Purchase Repurchase Date;
(iii3) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockRepurchase Price;
(iv4) the name and address of the Paying Agent and the Conversion Agent;
(v5) the Conversion Rate and any adjustments theretoRate;
(vi6) that the Notes Securities as to which a Purchase Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture Article X only if the Purchase Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii7) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viii) 8) that the Purchase Repurchase Price for any Notes Security as to which a Purchase Repurchase Notice has been duly given and not withdrawn shall will be paid promptly following the later of the Purchase Repurchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii)Security;
(ix9) the procedures the Holder must follow to exercise its rights put right under this Section 4.1 and a brief description of such rights3.08(a);
(x10) briefly, the conversion rights of the Notesrights, if any, and that of the Holder must satisfy the requirements set forth in the Indenture in order to convert the NotesSecurities;
(xi11) the procedures for withdrawing a Purchase Repurchase Notice, including a form of notice of withdrawal;
(xii12) that, unless the Company defaults in making payment of such Purchase Repurchase Price, interest (including any Additional Interest) and Additional Amountsinterest, if any, on Notes Securities surrendered for purchase repurchase by the Company shall will cease to accrue on and after the Purchase Repurchase Date; and
(xiii13) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's ’s request, the Trustee shall give the Company Notice Purchase Offer in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice Purchase Offer must be given to the Holders Holder in accordance with this Section 4.1(b3.08(a)(ii); provided, further, that the text of the Company Notice Purchase Offer shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(ciii) A Holder may exercise its rights right specified in clause (aSection 3.08(a)(i) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") properly completed Repurchase Notice to the Paying Agent at any time from during the opening of business period beginning at 9:00 a.m., New York City time, on the date that is 22 20 Business Days prior to immediately preceding the relevant Purchase Repurchase Date until the close of business 5:00 p.m., New York City time, on the second Business Day prior to immediately preceding such Purchase Repurchase Date. The Purchase Notice delivered by a Holder shall state , stating:
(i1) the relevant Purchase Date, certificate number (iiif in certificated form) if certificated Securities, the serial number or numbers of the Note or Notes Security which the Holder shall will deliver to be purchased repurchased or the appropriate Depositary procedures if Physical Securities have not been issued;
(if not certificated, the notice must comply with Applicable Procedures), (iii2) the portion of the principal amount of the Note Security which the Holder shall will deliver to be purchasedrepurchased, which portion must be in principal amounts of $1,000 or an integral multiple thereof, and of $1,000 principal amount; and
(iv3) that such Note Security shall be purchased repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in the Securities and in this Indenture. Delivery of a Note to the Paying Agent by The book-entry transfer or physical delivery prior toof such Security to the Paying Agent with, on or at any time after delivery of, the applicable Purchase Date Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent is shall be a condition to the receipt by the Holder of the Purchase Repurchase Price therefor; provided, however, that such Purchase Repurchase Price shall be so paid pursuant to this Section 4.1 3.08(a) only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Repurchase Notice, as determined by the Company. The Company shall purchase repurchase from the Holder thereof, pursuant to this Section 4.13.08(a), a portion of a Note if Security, so long as the principal amount of such portion is $1,000 principal amount or an integral multiple thereofof $1,000 principal amount. Provisions of this Indenture that apply to the purchase repurchase of all of a Note pursuant to Section 4.1 through Section 4.7 Security also apply to the purchase repurchase of such portion of such NoteSecurity. Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.08(a)(iii) shall have the right to withdraw such Repurchase Notice at any applicable time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.08(b). The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Arris Group Inc)
Optional Put. (a) Each Subject to the provisions of this ARTICLE IV, each Holder shall have the right, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemptionNotes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March May 15, 20112013, March May 15, 2014 2016 and March May 15, 2019 2021 (each a "PURCHASE DATE"). The Company shall be required to purchase such Notes at a purchase price in cash equal to 100% of the principal amount plus accrued and unpaid interest, Additional Amounts interest (including Contingent Interest and Additional Interest, if any, ) to, but excluding, the Purchase Date (the "PURCHASE PRICEPrice"). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts Contingent Interest and Additional Interest, if any, to the Holder holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay On or before the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 22nd Business Days Day prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and shall cause such notice to be mailed to beneficial owners as to the extent required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in this Indenture in order to convert the Notes;
(vi) the Conversion Rate and any adjustments thereto;
(vivii) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiviii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viiiix) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security Notes as described in Section 4.1(b)(vii4.1(b)(viii);
(ixx) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Contingent Interest or Additional Interest) and Additional Amounts, if any), on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's request, the Trustee shall give the Company Notice notice of purchase right in the Company's name and at the Company's expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is are in the form of a Global SecurityNote, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global SecuritiesNotes. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make issue a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause Section 4.1
(a) of this Section 4.1 upon delivery of a written notice (which which, in the case of Certificated Notes, shall be in substantially the form included on the reverse side of the Securities Notes entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global SecuritiesNotes, may shall be a notice delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business 5:00 p.m., Eastern Standard time, on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated SecuritiesCertificated Notes have been issued, the serial certificate number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities Notes and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global SecuritiesNotes, any Purchase Notice may be delivered or withdrawn and such Securities Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Greenbrier Companies Inc)
Optional Put. (ai) Each Holder Securities shall have be repurchased by the rightCompany, at the Holder's option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption, or any portion option of the principal amount thereof that is equal to $1,000 or an integral multiple Holder thereof, as directed by such Holder pursuant to this Section 4.1, on each of March November 15, 20112013, March November 15, 2014 2016 and March November 15, 2019 2021 (each each, a "PURCHASE DATE"“Repurchase Date”). The Company shall be required to purchase such Notes , at a purchase repurchase price in cash equal to 100% of the principal amount of the Securities to be repurchased (without premium or penalty) plus accrued and unpaid interest, Additional Amounts and Additional Interest, if any, any to, but excluding, the Purchase such Repurchase Date (the "PURCHASE PRICE"“Repurchase Price”). In , subject to satisfaction by or on behalf of the event Holder of the requirements set forth in Section 3.08(A)(iii), provided, however, that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay such accrued and unpaid interest, Additional Amounts and Additional Interest, if any, will be paid not to the Holder submitting the Security for repurchase on the relevant Repurchase Date but instead to the Holder of record at the repurchased Note and not the Holder close of business on the Regular Record Datecorresponding record date.
(bii) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 20 Business Days prior to each Purchase Repurchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase repurchase right under Section 3.08(A)(i) (a “Purchase Offer”) by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, (and to beneficial owners as required by applicable law). The notice shall include a form of Purchase Notice notice to be completed by the Holder and returned to the Company in the event that the Holder elects such right to such repurchase and shall briefly state, as applicable:
(i1) the date by which the Purchase Repurchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1repurchase right;
(ii2) the Purchase Repurchase Date;
(iii3) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockRepurchase Price;
(iv4) the name and address of the Paying Agent and the Conversion Agent;
(v5) the Conversion Rate and any adjustments theretoRate;
(vi6) that the Notes Securities as to which a Purchase Repurchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture Article X only if the Purchase Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii7) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viii) 8) that the Purchase Repurchase Price for any Notes Security as to which a Purchase Repurchase Notice has been duly given and not withdrawn shall will be paid promptly following the later of the Purchase Repurchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii)Security;
(ix9) the procedures the Holder must follow to exercise its rights right to have its Securities repurchased by the Company under this Section 4.1 and a brief description of such rights3.08(A);
(x10) briefly, the conversion rights of the Notesrights, if any, and that of the Holder must satisfy the requirements set forth in the Indenture in order to convert the NotesSecurities;
(xi11) the procedures for withdrawing a Purchase Repurchase Notice, including a form of notice of withdrawal;
(xii12) that, unless the Company defaults in making fails to timely make payment of such Purchase Repurchase Price, interest (including any Additional Interest) and Additional Amountsinterest, if any, on Notes Securities surrendered for purchase repurchase by the Company shall will cease to accrue on and after the Purchase Repurchase Date; and
(xiii13) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's ’s request, the Trustee shall give the Company Notice Purchase Offer in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice Purchase Offer must be given to the Holders Holder in accordance with this Section 4.1(b3.08(A)(ii); provided, further, that the text of the Company Notice Purchase Offer shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Notice.
(ciii) A Holder may exercise its rights right specified in clause (aSection 3.08(A)(i) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "Option of Holder to Elect Purchase" hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a "PURCHASE NOTICE") properly completed Repurchase Notice to the Paying Agent at any time from during the opening of business period beginning at 9:00 a.m., New York City time, on the date that is 22 20 Business Days prior to immediately preceding the relevant Purchase Repurchase Date until the close of business 5:00 P.M., New York City time, on the second Business Day prior to immediately preceding such Purchase Repurchase Date. The Purchase Notice delivered by a Holder shall state , stating:
(i1) the relevant Purchase Date, certificate number (iiin the case of Physical Securities) if certificated Securities, the serial number or numbers of the Note or Notes Security which the Holder shall will deliver to be purchased repurchased or the appropriate Depositary procedures if Physical Securities have not been issued;
(if not certificated, the notice must comply with Applicable Procedures), (iii2) the portion of the principal amount of the Note Security which the Holder shall will deliver to be purchasedrepurchased, which portion must be in principal amounts of $1,000 or an integral multiple thereof, and of $1,000 principal amount; and
(iv3) that such Note Security shall be purchased repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in the Securities and in this Indenture. Delivery of a Note to the Paying Agent by The book-entry transfer or physical delivery prior toof such Security to the Paying Agent with, on or at any time after delivery of, the applicable Purchase Date Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent is shall be a condition to the receipt by the Holder of the Purchase Repurchase Price therefor; provided, however, that such Purchase Repurchase Price shall be so paid pursuant to this Section 4.1 3.08(A) only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Repurchase Notice, as determined by the Company. The Company shall purchase repurchase from the Holder thereof, pursuant to this Section 4.13.08(A), a portion of a Note if Security, so long as the principal amount of such portion is $1,000 principal amount or an integral multiple thereofof $1,000 principal amount. Provisions of this Indenture that apply to the purchase repurchase of all of a Note pursuant to Section 4.1 through Section 4.7 Security also apply to the purchase repurchase of such portion of such NoteSecurity. Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.08(A)(iii) shall have the right to withdraw such Repurchase Notice at any applicable time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.08(B). The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Repurchase Notice or written notice of withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (Arris Group Inc)
Optional Put. (a) Each Holder shall have the right, at the Holder's ’s option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's ’s Notes not theretofore called for redemption, or any portion of the principal amount Principal Amount at Issuance thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15February 1, 2011, March 15February 1, 2014 and March 15February 1, 2019 (each a "PURCHASE DATE"“Purchase Date”). The Company shall be required to purchase such Notes at a purchase price in cash equal to 100% of the principal amount Accreted Principal Amount plus accrued and unpaid interest, Additional Amounts Contingent Interest and Additional Interest, if any, to, but excluding, the Purchase Date (the "PURCHASE PRICE"“Purchase Price”). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) the Conversion Rate and any adjustments thereto;
(vi) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(vii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viii) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security as described in Section 4.1(b)(vii);
(ix) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts), if any, on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
and (xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's ’s request, the Trustee shall give the Company Notice notice of purchase right in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "“Option of Holder to Elect Purchase" ” hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's ’s customary procedures) of the exercise of such rights (a "PURCHASE NOTICE"“Purchase Notice”) to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount Principal Amount at Issuance of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount Principal Amount at Issuance of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Optional Put. (a) Each Subject to the provisions of this Article IV, each Holder shall have the right, at the Holder's ’s option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's ’s Notes not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15May 1, 20112009, March 15May 1, 2014 and March 15May 1, 2019 (each a "PURCHASE DATE"“Purchase Date”). The Company shall be required to purchase such Notes at a purchase price in cash equal to 100% of the principal amount plus accrued and unpaid interest, Additional Amounts interest and Additional Interest, if any, to, but excluding, the Purchase Date (the "PURCHASE PRICE"“Purchase Price”). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts and Additional Interest, if any, to the Holder of the repurchased Note and not the Holder on the Regular Record Date.
(b) The Company shall pay the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 Business Days prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and to beneficial owners as required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(vi) the Conversion Rate and any adjustments thereto;
(vivii) that the Notes as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiviii) that the Notes must be surrendered to the Paying Agent to collect payment;
(viiiix) that the Purchase Price for any Notes as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security Notes as described in Section 4.1(b)(vii4.1(b)(viii);
(ixx) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Additional Interest) and Additional Amounts), if any, on Notes surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase Date. At the Company's ’s request, the Trustee shall give the Company Notice notice of purchase right in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause (a) of this Section 4.1 upon delivery of a written notice (which shall be in substantially the form included on the reverse side of the Securities entitled "“Option of Holder to Elect Purchase" ” hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's ’s customary procedures) of the exercise of such rights (a "PURCHASE NOTICE"“Purchase Notice”) to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated Securities, the serial number or numbers of the Note or Notes which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (CTS Corp)
Optional Put. (a) Each Subject to the provisions of this ARTICLE IV, each Holder shall have the right, at the Holder's ’s option, but subject to the provisions of this Section 4.1, to require the Company to purchase, and upon the exercise of such right, the Company shall purchase, all of such Holder's Notes not theretofore called for redemption’s Securities, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, as directed by such Holder pursuant to this Section 4.1, on each of March 15February 1, 2011, March 15February 1, 2014 2016 and March 15February 1, 2019 2021 (each a "PURCHASE DATE"“Purchase Date”). The Company shall be required to purchase such Notes Securities at a purchase price in cash equal to 100% of the principal amount plus accrued and unpaid interest, Additional Amounts and interest (including Additional Interest, if any, ) to, but excluding, the Purchase Date (the "PURCHASE PRICE"“Purchase Price”). In the event that a Purchase Date is a date that is after any Regular Record Date but on or before the corresponding Interest Payment Date, the Company shall be required to pay accrued and unpaid interest, Additional Amounts interest and Additional Interest, if any, to the Holder holder of the repurchased Note Security and not the Holder on the Regular Record Date.
(b) The Company shall pay On or before the Purchase Price with respect to Notes to be purchased pursuant to this Article IV as of the first Purchase Date wholly in cash; however, it may elect with respect to either or both of the two remaining Purchase Dates to pay the Purchase Price in respect of Notes to be purchased pursuant to this Section 4.1 as of such Purchase Date, in cash or Common Stock, or in any combination of cash and Common Stock, subject to the conditions set forth in Section 4.1(d). The Company shall designate, in the Company Notice delivered pursuant to this Section 4.1(b), whether the Company will purchase the Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of Notes in respect of which it will pay in cash and Common Stock; provided that the Company shall pay cash for fractional interests in shares of Common Stock, and it shall pay any accrued and unpaid interest, Additional Amounts and Additional Interest on such Notes in cash. Each Holder whose Notes are purchased pursuant to this Section 4.1 shall receive the same percentage of cash and/or Common Stock in payment of the Purchase Price for such Notes, except as provided in Section 4.1(d) with regard to the payment of cash in lieu of fractional interests in shares of Common Stock. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders, except as provided in Section 4.1(d). No later than 22 22nd Business Days Day prior to each Purchase Date, the Company shall mail a written notice (the "COMPANY NOTICE") of the purchase right by first class mail to the Trustee (and the Paying Agent if the Trustee is not then acting as a Paying Agent) and to each Holder at its address shown in the Register of the Registrar, and shall cause such notice to be mailed to beneficial owners as to the extent required by applicable law. The notice shall include a form of Purchase Notice to be completed by the Holder and shall briefly state, as applicable:
(i) the date by which the Purchase Notice must be delivered to the Paying Agent in order for a Holder to exercise the purchase right pursuant to this Section 4.1;
(ii) the Purchase Date;
(iii) the Purchase Price and, in the case of Notes subject to purchase on either the second or third Purchase Date, whether the Company will purchase such Notes for cash or Common Stock, or, if a combination thereof, the percentages of the Purchase Price of such Notes in respect of which it will pay cash and Common StockPrice;
(iv) the name and address of the Paying Agent and the Conversion Agent;
(v) briefly, the conversion rights of the Securities, if any, and that the Holder must satisfy the requirements set forth in this Indenture in order to convert the Securities;
(vi) the Conversion Rate and any adjustments thereto;
(vivii) that the Notes Securities as to which a Purchase Notice has been given may be converted into Common Stock if they are otherwise convertible pursuant to ARTICLE XII of this Indenture only if the Purchase Notice has been withdrawn in accordance with the terms of this Indenture;
(viiviii) that the Notes Securities must be surrendered to the Paying Agent to collect payment;
(viiiix) that the Purchase Price for any Notes Securities as to which a Purchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Purchase Date and the time of surrender of such Security Securities as described in Section 4.1(b)(vii4.1(b)(viii);
(ixx) the procedures the Holder must follow to exercise its rights under this Section 4.1 and a brief description of such rights;
(x) briefly, the conversion rights of the Notes, if any, and that the Holder must satisfy the requirements set forth in the Indenture in order to convert the Notes;
(xi) the procedures for withdrawing a Purchase Notice, including a form of notice of withdrawal;
(xii) that, unless the Company defaults in making payment of such Purchase Price, interest (including any Contingent Interest or Additional Interest) and Additional Amounts, if any), on Notes Securities surrendered for purchase by the Company shall cease to accrue on and after the Purchase Date; and
(xiii) the CUSIP number(s) of the Notes. In the event the Company has elected to pay a Purchase Price (or a specified percentage thereof) with Common Stock, the Company Notice shall also:
(1) state that each Holder will receive Common Stock with a Market Price determined as of a specified date prior to the Purchase Date equal to a specified percentage of the Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of a fractional share); and
(2) set forth the method of calculating the Market Price and state that because the Market Price of Common Stock will be determined prior to the Purchase Date, the Holders will bear the market risk with respect to the value of the Common Stock to be received between the date such Market Price is determined and the Purchase DateSecurities. At the Company's ’s request, the Trustee shall give the Company Notice notice of purchase right in the Company's ’s name and at the Company's ’s expense; provided, however, that the Company makes such request at least five Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to the date by which such Company Notice notice of purchase right must be given to the Holders in accordance with this Section 4.1(b); provided, further, that the text of the Company Notice notice of purchase right shall be prepared by the Company. If any of the Notes is Securities are in the form of a Global Security, then the Company shall modify such Company Notice notice to the extent necessary to accord with the procedures of the Depositary applicable to the purchase of Global Securities. Simultaneously with delivering the Company Notice written notice pursuant to this Section 4.1(b), the Company shall make a Public Notice containing all information specified in such Company Noticewritten notice.
(c) A Holder may exercise its rights specified in clause (aSection 4.1(a) of this Section 4.1 upon delivery of a written notice (which which, in the case of Certificated Securities, shall be in substantially the form included on the reverse side of the Securities entitled "“Option of Holder to Elect Purchase" hereto ” and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may shall be a notice delivered electronically or by other means in accordance with the Depositary's ’s customary procedures) of the exercise of such rights (a "PURCHASE NOTICE"“Purchase Notice”) to the Paying Agent at any time from the opening of business on the date that is 22 Business Days prior to the relevant Purchase Date until the close of business 5:00 p.m., Eastern Standard time, on the second Business Day prior to such Purchase Date. The Purchase Notice delivered by a Holder shall state (i) the relevant Purchase Date, (ii) if certificated SecuritiesSecurities have been issued, the serial certificate number or numbers of the Note Security or Notes Securities which the Holder shall deliver to be purchased (if not certificated, the notice must comply with Applicable Procedures), (iii) the portion of the principal amount of the Note Security which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof, and (iv) that such Note Security shall be purchased pursuant to the terms and conditions specified in the Securities and this Indenture. Delivery of a Note Security to the Paying Agent by book-entry transfer or physical delivery prior to, on or after the applicable Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent is a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 4.1 only if the Note Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company. The Company shall purchase from the Holder thereof, pursuant to this Section 4.1, a portion of a Note Security if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note Security pursuant to Section 4.1 through Section 4.7 also apply to the purchase of such portion of such NoteSecurity. The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written withdrawal thereof. Anything herein to the contrary notwithstanding, in the case of Global Securities, any Purchase 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.
(d) To the extent permitted by Section 4.1(b), the Purchase Price of Notes in respect of which a Purchase Notice pursuant to Section 4.1(c) has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of shares of Common Stock equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such specified percentage, as the case may be, of the Purchase Price of such Securities in cash by (ii) 95% of the Market Price of a share of Common Stock as of the applicable Purchase Date, subject to the next succeeding paragraph. The Company will not issue a fractional share of Common Stock in payment of the Purchase Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of a share shall be determined by multiplying the Market Price by such fraction and rounding the product to the nearest whole cent. It is understood that if a Holder elects to have more than one Security repurchased, the number of shares of Common Stock shall be based on the aggregate amount of Securities to be repurchased. The Company's right to exercise its election to Purchase Notes pursuant to this Section 4.1 through the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to purchase all or a specified percentage of the Notes with Common Stock as provided in Section 4.1(b);
(ii) registration of the shares of Common Stock to be issued in respect of the payment of the specified percentage of the Purchase Price under (A) the Exchange Act and (B) the Securities Act, unless in the case of this clause (B) the shares of Common Stock so issued can be freely resold by the Holder (assuming such Holder is not the Company or an Affiliate of the Company) receiving such shares without registration under the Securities Act;
(iii) any necessary qualification or registration of such shares under applicable state securities laws or the availability of an exemption from such qualification and registration;
(iv) the Common Stock shall be listed on a national securities exchange or quoted on an inter-dealer quotation system of any registered national securities association; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance of the Common Stock are in conformity with this Indenture and (B) the shares of Common Stock to be issued by the Company in payment of the specified percentage of the Purchase Price in respect of Securities have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the specified percentage of the Purchase Price in respect of Securities, will be validly issued, fully paid and nonassessable, and, in the case of such Officers' Certificate, stating that conditions (i), (ii), (iii) and (iv) above have been satisfied and, in the case of such Opinion of Counsel, stating that conditions (ii) and (iii) above have been satisfied. Such Officers' Certificate shall also set forth the number of shares of Common Stock to be issued for each $1,000 principal amount of Notes and the Closing Sale Price on each Trading Day during the period during which the Market Price is calculated, and the Company shall disseminate such information as soon as practicable after determination thereof by Public Notice. If conditions are not satisfied prior to or on the Purchase Date and the Company has elected to purchase the Notes to be purchased as of such Purchase Date pursuant to this Section
4.1 through the issuance of shares of Common Stock, the Company shall pay the entire Purchase Price in respect of such Notes in cash.
Appears in 1 contract
Sources: Indenture (DRS Technologies Inc)