If a change of control occurs, the Issuer may be required to offer the holders of the Notes an opportunity to sell all or part of their Notes at a purchase price of 101% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase. In addition, if Wayfair sells assets under certain circumstances, the Issuer may be required to make an offer to purchase a portion of the Notes.
At any time prior to November 15, 2028, the Issuer may on one or more occasions redeem the Notes, in whole or in part, at a price equal to 100% of the principal amount of the Notes redeemed, plus a “make-whole” premium, as set forth in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. On or after November 15, 2028, the Issuer may on one or more occasions redeem the Notes, in whole or in part, at the applicable redemption prices set forth in the Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, at any time prior to November 15, 2028, the Issuer may on one or more occasions redeem up to 40% of the aggregate principal amount of the Notes with an amount equal to or less than the net cash proceeds received by the Issuer or Wayfair from certain equity offerings at a redemption price equal to 106.75% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
Furthermore, at any time prior to November 15, 2028, the Issuer may redeem up to 10% of the aggregate principal amount of the Notes during any twelve-month period at a redemption price equal to 103% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
The Indenture provides for customary events of default, which include (subject in certain cases to customary grace and cure periods) nonpayment of principal or interest; breach of other agreements in the Indenture; defaults in failure to pay certain other indebtedness; certain events of bankruptcy or insolvency; the failure to pay final judgments in excess of certain amounts of money against the Issuer and its significant subsidiaries; the failure of certain guarantees to be enforceable (other than in accordance with the terms of the Indenture); and the assertion by the Issuer, Wayfair or any guarantor that is a significant subsidiary in any pleading that any security interest related to the Notes is invalid or unenforceable.
The foregoing description is qualified in its entirety by reference to the text of the Indenture and the Form of Note, which are attached as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements include, without limitation: Wayfair’s anticipated use of the net proceeds from the Notes offering, including the potential purchase of a portion of the 2027 Notes and 2028 Notes, the potential repayment of other existing indebtedness, and the timing of any such actions; expectations regarding potential derivative unwinding transactions by certain holders of the 2027 Notes and the 2028 Notes that Wayfair may purchase; the potential market impact, including to the trading price of Wayfair’s Class A common stock, of such derivative unwinding transactions; and any expectations regarding any dilution and liability management exercises Wayfair may undertake. These statements are based on Wayfair’s current plans and expectations and involve risks and uncertainties that could cause actual future activities and results of operations to be materially different from those set forth in the forward-looking statements. Factors that could cause actual results to differ materially from those indicated in the forward-looking statements include, without limitation: risks relating to dilution and liability management exercises generally; risks relating to Wayfair’s ability to successfully and timely purchase a portion of the 2027 Notes and 2028 Notes, and potentially repay other existing indebtedness, including the timing of any such actions; risks relating to the impact, including to the trading price of Wayfair’s Class A common stock, of any associated derivative unwinding transactions; and the other risks and uncertainties set forth in the sections entitled “Risk Factors” and “Forward-Looking Statements” in Wayfair’s most recent Annual Report on Form 10-K and in its other filings with the Securities and Exchange Commission (“SEC”). Wayfair qualifies all of its forward-looking statements by these cautionary statements. These forward-looking statements speak only as of the date of this report and, except as required by applicable law, Wayfair undertakes no obligation to publicly update or revise any forward-looking statements contained herein, whether as a result of any new information, future events or otherwise.
