Bond Repurchases – an Issuer’s Guide to Questions to Ask and Points to Consider

by White & Case LLP
Contact

White & Case LLP

In the current environment, issuers may start to consider whether, if their bonds are trading at a discount to par (or may be in the future), they should repurchase their bonds. The White & Case leveraged finance team puts forward these key points to consider when planning a bond repurchase transaction.

The Basics

A bond repurchase, or bond buyback, refers to the process whereby the issuer approaches the open market and repurchases its bonds from holders. If the bonds are trading at less than their par value, issuers can use this tool opportunistically to reduce their overall interest expense. Although there are other liability management processes issuers can use to reduce their outstanding indebtedness (for example, a tender offer), repurchases are advantageous for issuers that wish to capitalise relatively quickly on a depressed market price for their bonds. One benefit of bond repurchases is that they do not require legally mandated time periods (for example, tender offers for bonds in the US are, with limited exceptions, required to remain open for 20 business days) or offering documentation.

Creeping Tenders

When structuring your bond repurchase program, you must ensure that you are not conducting what is, under US securities law, essentially a tender offer by another name; otherwise, you would risk being in violation of US tender offer rules if your repurchase program targets US holders. Even small repurchases can, in some circumstances, be grouped together in a way that violates the tender offer rules. Although these rules regulate tender offers, they, somewhat unhelpfully, do not define what a tender offer is. So US courts have stepped into the void, setting forth various factual tests to determine whether or not a securities repurchase program is actually a tender offer.

The most prominent among these tests are the so-called "Wellman" factors (as developed in Wellman v. Dickinson, 475 F. Supp. 783, 823-824 (S.D.N.Y. 1979)), which are weighed when making this determination. Under this test, your bond repurchase program could be seen to be a tender offer if at least some of the following statements about it are true:

  • the offer is disseminated in a widespread manner to the market, for example by press release;
  • a premium to the market price is offered;
  • there is no meaningful opportunity to negotiate price or terms of the offer (it is effectively "take it or leave it");
  • the offer is for a substantial percentage of the outstanding issue;
  • the offer is contingent on a minimum principal amount of bonds being tendered;
  • the offer is open for only a limited period of time;
  • recipients of the offer are under pressure to respond to the offer; and
  • the announcement of an acquisition program has been followed by a rapid accumulation of bonds.

The factors are effectively an attempt to distil the traditional features of a tender offer—i.e., if it looks like a tender offer and smells like a tender offer, it is one.

Avoiding a tender offer

We would recommend a few common-sense steps to avoid your bond repurchases being considered tender offers in disguise:

  • Instruct a limited number of banks to make enquiries on your behalf. Engaging one or two brokers who understand the above limitations and what you are trying to do will ensure things are coordinated.
  • Ensure that your banks reach out to a limited number of investors. If these are 144A high yield bonds, they are likely to still only be held by institutional investors. Even so, your banks should make calls to a limited number of institutions that they know are likely to be holding the bonds (versus a Bloomberg or other similar communication sent to the entire market).
  • Conduct the offers over a reasonable period of time and avoid coercive behaviour and pressure. Think private, individually negotiated transactions rather than "take it or leave it" behaviour.
  • Control the size of the repurchase. The repurchase program should not be for the entire series of the notes or a substantial percentage (more on this below).

We are also asked from time to time whether it is possible to launch a tender offer after doing some repurchases. Care should be taken to ensure that no decision has been made to commence a tender offer while repurchases are being made, so a decision to conduct a tender offer and any preparations for a tender offer should start only after the repurchase program is finished.

25% rule? Maybe (or maybe not)

Market participants often cite the "25%" rule for determining the threshold of what is considered a "substantial percentage" of a particular class of notes—meaning that you are relatively safe below 25%. The "25%" rule comes from US case law (Hanson Trust PLC v. SMC Corporation, 774 F. 2d 47 (2nd Cir. NY 1985)), where the court found that a combination of privately negotiated and open market repurchases of equity securities totalling less than 25% of the total outstanding securities did not constitute a tender offer. Some practitioners in the market take the view that this "25%" rule may not necessarily apply to repurchases of debt securities, because the context and potential effect of a debt repurchase versus an equity repurchase are different. We believe that it is still a reasonable rule of thumb to follow, particularly given disclosure obligations (see below), which may dictate that you disclose purchases above a particular threshold where they are considered material, although the analysis should be done on a case-by-case basis based on context, facts and circumstances.

Disclosure to the market

We are frequently asked whether bond repurchase programs need to be disclosed (and when).

If you are subject to the Market Abuse Regulation ("MAR"), the general rule is that issuers must inform the public as soon as possible of inside information which directly concerns the issuer. Any buyback of a significant percentage of an outstanding bond issue that, if made public, would have a significant effect on their price, or on the price of related derivative financial instruments, would constitute inside information.

Your investment bank should be consulted to ensure that the amount of the outstanding issue that you propose to repurchase would not be considered price-sensitive (or that the buyback is not price-sensitive for other reasons, such as reducing the overall cash position of the issuer as a result of the buyback).

If MAR does not apply to you as an issuer, a reference to the repurchase program should generally be made to bondholders in the next interim or annual report. You should also consider whether the stock exchange where the bonds trade would require disclosure. As a general rule, they do not require prior disclosure as long as the repurchase is not material and is otherwise permitted by the bond documentation.

What do you know?

It may go without saying, but when you approach the market and make repurchases, you should be sure that any material non-public information has been released (and avoid making repurchases until you have done so).

We recommend that any closed periods that issuers already have in place for, for example, management sales of securities be observed (including trading "windows" observed before the release of results and immediately thereafter). If you have no official windows in place, you should avoid being in the market for a reasonable period before your interim or annual results are made public. Each "window" is reasonably fact-specific and dependent on how information typically crystallises before each report (for example, a company with far-flung operations that take a long time to consolidate may be comfortable that their results come together quite close to a reporting date, whereas companies that have fewer jurisdictions or tighter controls may be more sure of their results earlier).

What does the indenture (or other relevant documentation) say?

European high yield bond indentures typically permit voluntary repurchases of bonds with no limit (and sometimes affirmatively include a statement to the effect that they are permitted). This is also usually expressly stated in the offering memorandum related to issuance of the bonds.

Restricted payments covenants in indentures will treat repurchases of "subordinated" indebtedness (traditionally, contractually subordinated debt only—i.e., not indebtedness that is structurally junior or unsecured) as a restricted payment. It is also worth noting that under a typical indenture, if you repurchase notes and cancel them, you (unlike in a simultaneous refinancing) may lose capacity to re-incur the debt.

You should also confirm that your senior credit facility, if any, does not restrict or limit repurchases of other indebtedness.

To cancel/not to cancel

European bond indentures typically do not require notes acquired to be cancelled (they may be held in treasury indefinitely). However, typically any notes held by the issuer or any of its affiliates are, under the terms of the notes, no longer considered outstanding for voting purposes (and thus cannot be voted by the issuer or its affiliates in a consent solicitation or a waiver process, for example).

Tax

As with any transaction, issuers should consult their tax advisers to confirm the tax treatment of the proposed repurchase and when any gain will be recognised for income tax purposes.

Click here to download PDF.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© White & Case LLP | Attorney Advertising

Written by:

White & Case LLP
Contact
more
less

White & Case LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.