Repurchase of Notes Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 14.03 in an Authorized Denomination, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 15 nor more than 19 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the aggregate principal amount thereof, plus the Fundamental Change Repurchase Premium, plus any accrued and unpaid interest thereon at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”); provided, however, that if the Fundamental Change Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Company shall instead pay, on such Interest Payment Date, to the Holder of record as of the close of business on such Interest Record Date the full amount of accrued and unpaid interest at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date), and (ii) the Holder of such Notes to be repurchased on the Fundamental Change Repurchase Date will be entitled to receive the Fundamental Change Repurchase Price in cash in an amount equal to 100% of the aggregate principal amount of Notes to be repurchased pursuant to this Section 14.02, plus the Fundamental Change Repurchase Premium on such Notes. Any Notes so repurchased by the Company shall be paid for in cash. (b) Repurchases of Notes under this Section 14.02 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Paying Agent by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form of the Form of Fundamental Change Repurchase Notice, if the Notes are Physical Notes, or in compliance with the Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and (ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent on or before the first Business Day preceding the Fundamental Change Repurchase Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state: (i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase; (ii) the portion of the principal amount of Notes to be repurchased, which must be in an Authorized Denomination; and (iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 14.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 14.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof. (c) On or before the 10th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the Applicable Procedures. Each Fundamental Change Company Notice shall specify: (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change; (iii) the amount of principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Fundamental Change Repurchase Premium payable on each $1,000 principal amount of Notes on the Fundamental Change Repurchase Date; (iv) the Fundamental Change Repurchase Date; (v) the name and address of the Paying Agent; (vi) that on the Fundamental Change Repurchase Date, the principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) on the Notes will become due and payable upon each Note to be repurchased, and that, except in the circumstances specified in the proviso to Section 14.02(a), interest thereon shall cease to accrue on and after the Fundamental Change Repurchase Date; (vii) the procedures that Holders must follow to require the Company to repurchase their Notes; (viii) the place or places where such Notes are to be surrendered for payment of the principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and Fundamental Change Repurchase Premium on the Notes; (ix) the CUSIP, ISIN or other similar numbers, if any, assigned to the Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit or affect the maturity of the Notes pursuant to this Section 14.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent to the Holders (or such shorter period as agreed by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Simultaneously with providing such notice, the Company shall publish a press release containing this information or publish the information on the Company’s website or through such other public medium as the Company may use at that time. (d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the aggregate principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn. (e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 14, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 14.
Appears in 1 contract
Sources: Indenture (Liveperson Inc)
Repurchase of Notes Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity DateStated Maturity, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 14.03 15.03 in an Authorized Denomination, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 15 nor more than 19 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the aggregate principal amount thereof, plus the Fundamental Change Repurchase Premium, plus any accrued and unpaid interest thereon at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”); provided, however, that if the Fundamental Change Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Company shall instead pay, on such Interest Payment Date, to the Holder of record as of the close of business on such Interest Record Date the full amount of accrued and unpaid interest at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date), and (ii) the Holder of such Notes to be repurchased on the Fundamental Change Repurchase Date will be entitled to receive the Fundamental Change Repurchase Price in cash in an amount equal to 100% of the aggregate principal amount of Notes to be repurchased pursuant to this Section 14.0215.02, plus the Fundamental Change Repurchase Premium on such Notes. Any Notes so repurchased by the Company shall be paid for in cash.
(b) Repurchases of Notes under this Section 14.02 15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed written notice (the “Fundamental Change Repurchase Notice”) in the form of the Form of Fundamental Change Repurchase Notice, if the Notes are Physical Notes, or in compliance with the Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent on or before the first Business Day preceding the Fundamental Change Repurchase Date (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor. The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be in an Authorized Denomination; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 14.02 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 14.0315.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On . Notwithstanding anything herein to the contrary, any Holder shall have the right to convert, in whole or before the 10th Business Day in part, at any time after the occurrence of the effective date of Company provides a Fundamental Change, the Company shall provide to all Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the Applicable Procedures. Each Fundamental Change Company Notice shall specify:
(i) until the events causing close of business on the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the amount of principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Fundamental Change Repurchase Premium payable on each $1,000 principal amount of Notes on Business Day immediately preceding the Fundamental Change Repurchase Date;
(iv) the Fundamental Change Repurchase Date;
(v) the name and address Date by satisfaction of the Paying Agent;
(vi) that on the Fundamental Change Repurchase Date, the principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) on the Notes will become due and payable upon each Note to be repurchased, and that, except in the circumstances conditions for conversion specified in the proviso to Section 14.02(a), interest thereon shall cease to accrue on and after the Fundamental Change Repurchase Date;
(vii) the procedures that Holders must follow to require the Company to repurchase their Notes;
(viii) the place or places where such Notes are to be surrendered for payment of the principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and Fundamental Change Repurchase Premium on the Notes;
(ix) the CUSIP, ISIN or other similar numbers, if any, assigned to the Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit or affect the maturity of the Notes pursuant to this Section 14.02. At the Company’s request, given at least five days prior to the date the Fundamental Change Company Notice is to be sent to the Holders (or such shorter period as agreed by the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. Simultaneously accordance with providing such notice, the Company shall publish a press release containing this information or publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the aggregate principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 14, and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 14.
Appears in 1 contract
Sources: Indenture (Liveperson Inc)