Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section 10.11, upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 3 contracts

Samples: Investment Agreement (Nu Skin Enterprises Inc), Indenture (Nu Skin Enterprises Inc), Investment Agreement (Nu Skin Enterprises Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall ~~pay or deliver, as the case may be,~~ deliver to the converting Holder, in respect of each $1,000 principal amount of Securities being converted~~, cash ("Cash Settlement")~~, Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election10.03, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to such converting Holder, through the ~~converting Holder in respect of each $1,000 principal amount of Securities being converted~~ Conversion Agent, a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Securities to be converted, divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the applicable Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03)~~; (B) if~~ . Settlement shall occur on the ~~Company elects to satisfy its~~ second Business Day immediately following the relevant Conversion ~~Obligation in respect of~~ Date, unless such ~~conversion by Cash Settlement~~Conversion Date occurs on or following June 15, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be2021, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount which case settlement shall ~~be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending~~ occur on the ~~Trading Day immediately preceding such Conversion~~ Maturity Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date ~~and the last Trading Day of the relevant Observation Period, as applicable,~~ in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~later of (i) the third~~ second Business Day immediately following the relevant Conversion ~~Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable~~Date. In the case of any conversion of ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that ~~(i) to~~ the ~~extent all or a portion~~ shares of Common Stock due in respect of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ SL Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an SL Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SL Securities subject to conversion. ~~If any shares of Common Stock are due to converting Holders, the~~ The Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion~~. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 3 contracts

Samples: Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), ~~Common Stock~~Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~shares of Common Stock~~ Ordinary Share in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and ~~Common Stock~~Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~shares of Common Stock~~ Ordinary Share in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~ February 15, 2021 shall be settled using the same Settlement Method. (ii) All conversions of Securities occurring on or after the date of the Notice of Optional Redemption or the Notice of Tax Redemption, as applicable, and prior to the related Redemption Date shall be settled using the same Settlement Method. (iii) Except for any conversions described in the immediately preceding ~~clause~~ clauses (i) and (ii), the Company shall use the same Settlement Method for all conversions ~~of Securities~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different ~~Conversion Dates~~Trading Days. (~~iii~~iv) If, in respect of any Conversion Date (or for all conversions described in ~~any period~~the immediately preceding clauses (i) and (ii), as the case may be), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date ~~to which such Settlement Notice applies~~ (or, in the case of any conversions occurring on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~(x) February 15, 2021, no later than February 15, 2021) or (y) the ~~22nd Scheduled Trading Day immediately~~ date of the Notice of Optional Redemption or the Notice of Tax Redemption, as applicable, and prior to the ~~Maturity~~ related Redemption Date), in such Notice of Optional Redemption or Notice of Tax Redemption, as applicable. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to conversions on such Conversion Date~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation on such Conversion Date~~Obligation, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (ivv) The cash, ~~Common Stock~~ Ordinary Shares or combination of cash and ~~Common Stock~~ Ordinary Shares in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of ~~shares of Common Stock~~ Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive Trading ~~Day~~ Days during the related Observation Period; and (C) if the Company elects (or is deemed to have ~~elected pursuant to Section 10.02(a)(iii)~~elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or ~~deliver to the converting Holder~~deliver, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading ~~Day~~ Days during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period~~Ordinary Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. To convert its Security, a Holder of a Physical Security must (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to the Conversion Agent, (ii) surrender the Security to the Conversion Agent, (iii) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, (iv) pay all transfer or similar taxes if required pursuant to Section 10.04 and (v) pay funds equal to interest payable in on the next Interest Payment Date required by Section 10.02(c). If a Holder holds a beneficial interest in a Global Security, to convert such Security, the Holder must comply with clauses (iv) and (v) above and the Depositary’s procedures for converting a beneficial interest in a Global Security. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion ~~Date; provided~~Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Cash Settlement or Combination Settlement), ~~however, that~~ and the Person in whose name ~~any shares of~~ the ~~Common Stock~~ Ordinary Shares shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical ~~Settlement or a Combination Settlement of the Purchaser Securities~~Settlement) or the last Trading Day of the relevant Observation Period (in the case of Cash Settlement or Combination ~~Settlement other than in respect to the Purchaser Securities~~Settlement). Prior to such time, a Holder receiving ~~Common Stock~~ Ordinary Shares upon conversion shall not be entitled to any rights relating to such ~~Common Stock~~Ordinary Shares, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the Conversion Date ~~and~~ (in the case of Physical Settlement) or the last Trading Day of the relevant Observation ~~Period, as applicable,~~ Period (in ~~accordance with the requirements set forth herein and notify the Trustee of the same. (c) In~~ the case of ~~any~~ Cash Settlement or Combination Settlement), in each case, with respect to a conversion of ~~Securities~~ a Security pursuant hereto, all rights of the Holder of such Security shall terminate, other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Security as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date provided herein and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued ~~and~~ but unpaid interest, if any, ~~shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of~~ on such ~~Purchaser~~ Security ~~and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion~~as provided herein. (ec) ~~With respect to any Security except a Purchaser Security and except to the extent otherwise~~ Except as provided in the Securities or in this ~~Section 10.02(e)~~Article 10, no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and ~~Common Stock~~Ordinary Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) that is surrendered ~~for conversion~~ in connection with Optional Redemption or Tax Redemption, as applicable, and the Company has specified a Redemption Date that is after ~~the Close of Business on~~ a Record Date ~~for~~ and on or prior to the ~~payment of an installment of interest~~ Business Day immediately following the corresponding Interest Payment Date and the conversion occurs after such Record Date and on or prior to the Open of Business on ~~the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to~~ such Interest Payment Date; provided further that, if the Company shall have, prior to the Conversion Date with respect to a Security, defaulted in a payment of interest on such Security, then in no event shall the Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to Section 2.12 or otherwise (it being understood that nothing in this Section 10.02(c) shall affect the Company’s obligations under Section 2.12). (gd) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (he) The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. If any Ordinary Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of Ordinary Shares to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (f) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. (g) If the last day on which a Security may be converted is not a Business Day, the Security may be surrendered to that Conversion Agent on the next succeeding day that is a Business Day.

Appears in 2 contracts

Samples: Indenture (Avago Technologies LTD), Indenture (Avago Technologies LTD)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 61st Scheduled Trading Day immediately preceding the Maturity Date, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a notice of redemption with respect to the Securities and prior to the ~~Maturity Date~~ related Redemption Date, shall be settled using the same Settlement Method. (ii) ~~Except for any conversions described in the immediately preceding clause (i), the~~ The Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion ~~Date~~Date (except for any conversions described in the immediately preceding clause (i)), but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and Conversion Agent) no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (x) after the date of issuance of a notice of redemption and prior to the related Redemption Date, in such notice of redemption or (y) on or after the ~~22nd~~ 61st Scheduled Trading Day immediately ~~prior to~~ preceding the Maturity Date, no later than the ~~22nd~~ 61st Scheduled Trading Day immediately ~~prior to~~ preceding the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical ~~Settlement or a Combination Settlement of the Purchaser Securities~~Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination ~~Settlement other than in respect to the Purchaser Securities~~Settlement). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee and Conversion Agent of the same. (c) In the case of any conversion of ~~Securities other than the Purchaser~~ Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the ~~third~~ second Business Day immediately following the relevant Conversion Date (in the case of Physical Settlement) and (ii) the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation ~~Period, as applicable. In~~ Period (in the case of ~~any conversion of Purchaser Securities, the Company shall pay~~ Combination Settlement or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion DateCash Settlement). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~13.01, the Company has specified a Redemption Date that is after such Record Date but on or prior to the Business Day immediately following such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 2 contracts

Samples: Investment Agreement (ExlService Holdings, Inc.), Indenture (ExlService Holdings, Inc.)

Conversion Procedure and Payment Upon Conversion. (a) ~~Subject~~ To convert its Note pursuant to ~~this~~ an Early Conversion, a Holder of a definitive Note must: (1) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice (which shall be irrevocable) to the Conversion Agent; (2) surrender the Note to the Conversion Agent; (3) furnish appropriate endorsements and transfer documents if required by the Security Registrar or Conversion Agent; and (4) pay all transfer or similar taxes if required pursuant to Section ~~10.02 and Section 10.11~~11.04. If a Holder holds a beneficial interest in a Note that is a Global Security (a “Global Note”), ~~upon conversion of any Security~~to convert such Note, the ~~Company shall pay or deliver, as~~ Holder must comply with clause (4) above and the ~~case may be, to the~~ Depositary’s procedures for converting ~~Holder,~~ a beneficial interest in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02Global Note. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation~~ a Holder’s Note in ~~respect of such conversion by Physical Settlement~~an Early Conversion, the Company shall deliver to such converting Holder, through the ~~converting Holder in respect of each $1,000 principal amount of Securities being converted~~ Conversion Agent, a number of shares of Common Stock per $1,000 Original Principal Amount of Notes being converted equal to the Conversion Rate in effect on the applicable Early Conversion Date (~~provided that~~ plus cash in lieu of fractional shares in accordance with Section 11.03). In addition, the Company shall ~~deliver~~ deliver, through the Conversion Agent, with respect to the Notes being converted, cash in an amount per $1,000 Original Principal Amount of Notes equal to accrued and unpaid interest to the Early Conversion Date. If a Holder converts more than one Note at the same time, the full number of shares of Common Stock issued upon such conversion (and, as a result, the amount of cash deliverable in lieu of any fractional ~~shares as described in Section 10.03); (B~~share of Common Stock) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable in respect of accrued and unpaid interest shall be based on the aggregate Reduced Principal Amount of Notes converted by such Holder; provided, that if the Conversion Date with respect to any Note converted pursuant to Early Conversion occurs during the period after the close of business on any Record Date and before the opening of business on the corresponding Interest Payment Date, interest with respect to the Notes converted will be payable on such Interest Payment Date to the Holders in ~~lieu~~ whose names the Notes are registered at the close of ~~delivering any fractional shares of Common Stock, and in any event within one (1)~~ business on such Record Date. Settlement shall occur on the third Business Day immediately following the ~~last day~~ applicable Early Conversion Date. (ii) Upon conversion of the ~~Observation Period~~Notes in a Mandatory Conversion, the Company shall ~~notify the Trustee and~~ deliver to each Holder, through the Conversion ~~Agent~~ Agent, a number of shares of Common Stock per $1,000 Original Principal Amount of Notes equal to the Conversion Rate in effect on the applicable Mandatory Conversion Date (~~if other than the Trustee)~~ plus cash in lieu of ~~the Daily Settlement Amounts or the Daily Conversion Values~~fractional shares in accordance with Section 11.03). The full number of shares of Common Stock issued upon such conversion (and, as ~~the case may be~~a result, ~~and~~ the amount of cash ~~payable~~ deliverable in lieu of ~~delivering~~ any fractional share of Common Stock) shall be based on the aggregate Reduced Principal Amount of Notes outstanding. Settlement shall occur on the third Business Day immediately following the applicable Mandatory Conversion Date. (iii) The shares of Common ~~Stock. The Trustee and~~ Stock due upon conversion of a Global Note shall be delivered by the ~~Conversion Agent (if other than~~ Company in accordance with the ~~Trustee) shall have no responsibility for any such determination~~Depositary’s customary practices. (bc) ~~Each conversion~~ A Note shall be deemed to have been ~~effected as~~ converted (in each case, the “Conversion Date”) (i) immediately prior to ~~any Securities surrendered for conversion at~~ the ~~Close~~ close of ~~Business~~ business on the ~~applicable Conversion Date; provided, however,~~ date that the Holder has complied with the requirements set forth in Section 11.02(a) with respect to an Early Conversion, and (ii) immediately prior to the close of business on the Mandatory Conversion Date with respect to a Note subject to Mandatory Conversion. The Person in whose name ~~any~~ the shares of ~~the~~ Common Stock shall be ~~issuable~~ issued upon ~~such~~ any conversion pursuant to this Article 11 shall become the holder of record of such shares as of the ~~Close~~ close of ~~Business~~ business on ~~such~~ the applicable Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving shares of Common Stock upon conversion shall not be entitled to any rights relating to such shares of Common Stock, including, among other things, the right to ~~vote~~ vote, tender in a tender offer and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the close of business on the applicable Conversion Date ~~and the last Trading Day~~ with respect to a conversion of a Note pursuant hereto, all rights of the ~~relevant Observation Period~~Holder of such Note shall terminate, ~~as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities~~ other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Note as ~~the case may be, the consideration due~~ provided in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligationthis Article 11. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a ~~Security~~ Note that is converted in part, the Trustee shall authenticate for the Holder a new ~~Security~~ Note equal in ~~principal amount~~ Original Principal Amount with the Reduced Principal Amount reflected thereon to the unconverted portion of the ~~Security surrendered~~Note.

Appears in 2 contracts

Samples: Fifth Supplemental Indenture (Whiting Petroleum Corp), Sixth Supplemental Indenture (Whiting Petroleum Corp)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject~~ To convert a Physical Note, a Holder must (1) complete and sign the Conversion Notice, with appropriate signature guarantee, on the back of the Note, and deliver such Conversion Notice to the Conversion Agent, (2) surrender the Note to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Securities Registrar or Conversion Agent, (4) pay the amount of interest, if any, the Holder must pay in accordance with Section 10.02(C) and (5) pay any tax or duty if required pursuant to Section 10.03. To convert an interest in a Global Note, a Holder must comply with DTC’s then applicable conversion program procedures. To convert a Global Note, a Holder must comply with the procedures of the Depositary. A Holder may convert a portion of a Security if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount. If a Note is tendered for conversion in accordance with this ~~Section 10.02 and Section 10.11~~Article X, ~~upon conversion~~ then: (i) the Company shall deliver, through the Conversion Agent, to the Holder of ~~any Security~~such Note an amount of cash and, if applicable, a number of shares of Common Stock (the “Settlement Amount”) equal to the sum of the Daily Settlement Amounts for each Trading Day in the Cash Settlement Averaging Period for such conversion; (ii) the Company shall pay or deliver, as the case may be, to such Settlement Amount as soon as practicable following the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date ~~occurs on or~~ applicable to such conversion, but in no event more than three (3) Business Days after the ~~22nd Scheduled~~ last Trading Day ~~immediately prior~~ in the Cash Settlement Averaging Period applicable to ~~the Maturity Date~~ such conversion; provided, however, that any Make-Whole Consideration payable pursuant to Section 10.14 shall be ~~settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i),~~ delivered by the Company ~~shall use~~ within the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates.time period specified in Section 10.14(D); and (iii) Ifif the Settlement Amount includes shares of Common Stock, at and after the close of business on the last Trading Day in ~~respect of any Conversion Date (or for all conversions in any period)~~such Cash Settlement Averaging Period, the ~~Company elects~~ Person in whose name such certificate representing such shares of Common Stock, if any, is to ~~deliver~~ be registered shall be treated as a ~~notice (the "Settlement Notice")~~ stockholder of record with respect to such shares of Common Stock, and all rights of the ~~relevant Settlement Method in respect~~ Holder of such ~~Conversion Date (or such period~~Note shall terminate, ~~as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later~~ other than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to ~~elect Cash Settlement~~ receive the consideration payable or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holderdeliverable, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; Note as provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.herein;

Appears in 2 contracts

Samples: First Supplemental Indenture (Alpha Natural Resources, Inc.), First Supplemental Indenture (Massey Energy Co)

Conversion Procedure and Payment Upon Conversion. (a) ~~Subject~~ To convert its Security pursuant to ~~this Section 10.02 and Section 10.11~~an Optional Conversion, upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02.Securityholder must: (i) ~~All conversions for~~ complete and manually sign the Conversion Notice, with appropriate signature guarantee, or a facsimile of the Conversion Notice, and deliver the completed Conversion Notice (which ~~the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior~~ shall be irrevocable) to the ~~Maturity Date shall be settled using the same Settlement Method.~~Conversion Agent; (ii) ~~Except for any conversions described in~~ surrender the ~~immediately preceding clause (i),~~ Security to the ~~Company shall use the same Settlement Method for all conversions of Securities occurring on the same~~ Conversion ~~Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates.~~Agent; (iii) Iffurnish appropriate endorsements and transfer documents if required by the Registrar, ~~in respect of any~~ Conversion ~~Date (~~Agent or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000.’s transfer agent; and (iv) ~~The cash~~pay all transfer or similar taxes if required pursuant to Section 10.04. If a Holder holds a beneficial interest in a Global Security, ~~Common Stock or combination of cash~~ to convert such Security, the Holder must comply with clause (iv) above and ~~Common Stock~~ DTC’s applicable procedures for converting a beneficial interest in ~~respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows:~~a Global Security. (Ab) ~~if the Company elects to satisfy its~~ In connection with an Optional Conversion ~~Obligation in respect of such conversion by Physical Settlement~~or a Mandatory Conversion, the Company shall deliver to each converting Holder, through the ~~converting Holder in respect~~ Company’s transfer agent, a number of ~~each~~ shares of Common Stock per $1,000 principal amount of Securities being converted ~~a number of shares of Common Stock~~ equal to the Conversion Rate in effect on the applicable Conversion Date (~~provided that the Company shall deliver~~ plus cash in lieu of ~~any~~ fractional ~~shares as described~~ shares, if applicable, in accordance with Section 10.03)~~; (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement~~. In addition, the Company shall ~~pay~~ deliver, through the Conversion Agent, with respect to the ~~converting Holder~~ Securities being converted, cash in ~~respect of each~~ an amount per $1,000 principal amount of Securities ~~being converted cash in an amount~~ equal to accrued and unpaid interest to, but not including, the ~~sum~~ Conversion Date; provided, that if the Conversion Date occurs during the period after the Close of Business on any regular record date and before the opening of business on the corresponding interest payment date, notwithstanding such conversion, the full amount of interest payable with respect to the Securities will be payable on such interest payment date to the Holders in whose names the Securities are registered at the Close of Business on such regular record date and accrued interest will not be paid to the converting Holder upon settlement of the ~~Daily Conversion Values for each Trading Day during~~ conversion. The shares of Common Stock issuable upon conversion of a Global Security shall be delivered by the ~~related Observation Period~~Company in accordance with DTC’s applicable procedures; ~~and (C)~~ provided, that, prior to the Resale Restriction Termination Date, if the Company ~~elects (or is deemed~~ reasonably determines that the shares of Common Stock are subject to ~~have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation~~ restriction on transfer under the Securities Act at their time of issuance, they shall be issued in ~~respect of such conversion by Combination Settlement,~~ a form bearing the ~~Company shall pay or deliver~~ Common Stock Restricted Legend and subject to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Periodrestrictions on transfer specified therein. (vc) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion will be deemed converted at the Close of Business on the applicable Conversion Date~~; provided~~, ~~however, that~~ and the Person in whose name ~~any~~ the shares of ~~the~~ Common Stock shall be ~~issuable~~ issued upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to the Close of Business on such ~~time~~Conversion Date, a Holder receiving shares of Common Stock upon conversion shall not be entitled to any rights relating to such shares of Common Stock, including, among other things, the right to ~~vote~~ vote, tender in a tender offer and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the applicable Conversion Date ~~and the last Trading Day~~ with respect to a conversion of a Security pursuant hereto, all rights of the ~~relevant Observation Period~~Holder of such Security shall terminate, other than the right to receive the consideration deliverable or payable upon conversion of such Security as ~~applicable,~~ provided in ~~accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case~~ Section 10.02(b). Settlement of any conversion ~~of Securities other than the Purchaser Securities, the Company~~ provided for in this Article 10 shall ~~pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of~~ occur (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the ~~relevant~~ Optional Conversion Date, ~~which delivery date~~ in the case of an Optional Conversion and (~~in respect of such shares of Common Stock~~ii) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third Business Day immediately following the relevant~~ Mandatory Conversion Date~~). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests~~ , in the ~~Purchaser Securities subject to conversion. If any shares~~ case of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a ~~book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation~~Mandatory Conversion. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 2 contracts

Samples: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SLP Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ SLP Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of SLP Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “SLP Settlement Notice”) to the Holders of the SLP Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such SLP Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ SLP Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SLP Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SLP Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SLP Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SLP Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SLP Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ SLP Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SLP Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date or~~ Date, (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~3.02, the Company has specified an Investor Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iv) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.07, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 2 contracts

Samples: Indenture (Symantec Corp), Investment Agreement (Symantec Corp)

Conversion Procedure and Payment Upon Conversion. ~~(a)~~ Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02~~. (i)~~ . All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method~~. (ii)~~ . Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000~~. (iv)~~ . Notwithstanding the foregoing, any conversion of Sponsor Securities shall be subject to Section 10.02(a)(v). The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows~~: (A)~~ : if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03)~~; (B)~~ ; if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; ~~and (C)~~ and if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period~~. (v)~~ . Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ Sponsor Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Sponsor Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Sponsor Settlement Notice”) to the Holders of the Sponsor Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Sponsor Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ Sponsor Securities exercises its right to convert all or any portion of such ~~Purchaser~~ Sponsor Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Sponsor Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination~~. (b)~~ . Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ Sponsor Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ Sponsor Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same~~. (c)~~ . In the case of any conversion of Securities other than the ~~Purchaser~~ Sponsor Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ Sponsor Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ Sponsor Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Sponsor Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation~~. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion~~. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date~~, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g)~~ . If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted~~. (h)~~ . Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Investment Agreement (Symantec Corp)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject to this Section 10.02 and Section 10.11~~To convert a Security, ~~upon~~ a Holder must satisfy the requirements of PARAGRAPH 10 of the Securities. Upon conversion of ~~any~~ a Holder's Security, the Company shall ~~pay~~ deliver cash, ADSs or ~~deliver~~a combination of cash and ADSs to such Holder as follows, as provided that all Holders' rights with respect to conversion of the ~~case may be~~Securities and the Company's obligation to deliver ADSs at the Conversion Rate upon such conversion (the "CONVERSION OBLIGATION"), are subject, in their entirety, to the ~~converting Holder~~Company' right, in ~~respect~~ its sole and absolute discretion, to elect to satisfy such Conversion Obligation in any manner permitted pursuant to this SECTION 10.02: (i) the Company shall give notice, which shall be irrevocable, to Holders through the Conversion Agent of the method it will choose to satisfy its Conversion Obligation at any time on or before the date that is the second (2nd) Scheduled Trading Day following the Conversion Date (such period, the "SETTLEMENT NOTICE PERIOD") provided that if the related Conversion Date occurs during the period that begins, and includes, the twenty-seventh (27th) Scheduled Trading Day preceding February 15, 2012, such notice of the Company's election shall be given to Holders no later than the twenty-eighth (28th) Scheduled Trading Day prior to February 15, 2012. If the Company fails to provide notice within the Settlement Notice Period, the Company shall satisfy its Conversion Obligation only in ADSs (and cash in lieu of fractional ADSs). If the Company chooses to satisfy any portion of its Conversion Obligation in cash, it will specify the amount to be satisfied in cash as a percentage of the Conversion Obligation or as a fixed dollar amount for each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Securities. The Company shall ~~use the same Settlement Method for~~ treat all ~~conversions of Securities occurring~~ Holders converting on the same ~~Conversion Date~~calendar day in the same manner; however, ~~but~~ the Company shall not have any obligation to ~~use~~ settle Conversion Obligation arising on different calendar day as in the same ~~Settlement Method~~ manner. (ii) The Company may, in lieu of sending individual notices of its election, send one notice, which shall be irrevocable, to all Holders (with a copy to the Conversion Agent and the Trustee) of the method the Company chooses to satisfy its Conversion Obligation with respect to (i) all conversions of Securities that have been selected for redemption; and (ii) all conversions of Securities that occur on ~~different Conversion Dates~~or after the twenty-seventh (27) Scheduled Trading Day preceding February 15, 2012. (iii) ~~If, in respect~~ The consideration to be paid upon the conversion of any ~~Conversion Date~~ Security ("CONVERSION SETTLEMENT DISTRIBUTION") shall consist of cash, ADSs or ~~for all conversions in any period)~~a combination thereof, as selected by the Company, to be computed and delivered as set forth below: (a) if the Company elects to ~~deliver~~ satisfy the entire Conversion Obligation in ADSs, the Conversion Settlement Distribution shall be a ~~notice~~ number of ADSs equal to (A) the ~~"Settlement Notice")~~ aggregate principal amount of the ~~relevant Settlement Method~~ Securities to be converted divided by $1,000, multiplied by (B) the Conversion Rate, plus cash for any fractional shares pursuant to SECTION 10.02(B); (b) if the Company elects to satisfy the entire Conversion Obligation in ~~respect of such Conversion Date (or such period, as the case may be)~~cash, the ~~Company~~Conversion Settlement Distribution shall be cash in an amount equal to the product of: (1) a number equal to the product of (x) the aggregate principal amount of Securities to be converted divided by $1,000, ~~through~~ multiplied by (y) the ~~Trustee, shall deliver such Settlement Notice to converting Holders no later than~~ Conversion Rate; and (2) the ~~Close~~ average Daily VWAP of ~~Business on~~ the ADSs during the twenty (20) consecutive VWAP Trading Day ~~immediately following~~ period beginning on and including: (i) for Securities converted during the ~~relevant Conversion Date to which such Settlement Notice applies~~ period that begins, and includes, the twenty-seventh (~~or, in the case of any conversions occurring on or after the 22nd~~ 27) Scheduled Trading Day immediately ~~prior to~~ preceding February 15, 2012, the ~~Maturity Date, no later than the 22nd~~ twenty-fourth (24) Scheduled Trading Day immediately ~~prior to~~ preceding February 15, 2012; and (ii) in all other instances, the ~~Maturity Date~~second (2) VWAP Trading Day immediately after the Conversion Date (such twenty (20) consecutive VWAP Trading Day period being the "CASH SETTLEMENT AVERAGING PERIOD")~~. If~~ ; and (c) if the Company ~~does not elect~~ elects to satisfy a ~~Settlement Method prior to~~ percentage or a fixed amount (other than 100%) of the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in ~~such Settlement Notice~~cash, the ~~Specified Dollar~~ Conversion Settlement Distribution shall consist of (1) the amount of cash so elected ("CASH AMOUNT"), provided that if such Cash Amount exceeds the Conversion Amount of the Securities being converted, then the Company shall deliver such Conversion Amount in cash in lieu of such Cash Amount, and (2) a number of ADSs per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlementsum, ~~the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values~~ for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last VWAP Trading Day of the ~~relevant Observation Period (in the case of Combination~~ Cash Settlement ~~other than in respect to the Purchaser Securities). Prior to such time~~Averaging Period, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.greater of:

Appears in 1 contract

Samples: Indenture (Suntech Power Holdings Co., Ltd.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, the applicable Settlement Amount, plus an amount in cash equal to the accrued and unpaid interest on such Securities to, but excluding, the applicable Conversion Date (~~"Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement"~~accrued at the rate applicable to PIK interest) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in ~~this~~ Section ~~10.02~~10.02(d). (i) ~~All conversions for which~~ Subject to Section 10.02(a)(iv), not later than the Open of Business on the Business Day immediately following the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i)Date, the Company ~~shall use~~ may specify the ~~same Settlement Method for all conversions~~ portion of ~~Securities occurring on~~ the ~~same~~ Daily Share Amount that will be settled in cash (any such portion of the Daily Share Amount to be settled in cash, the “Cash Percentage”) by written notice (a “Cash Percentage Notice”) to each converting Holder, the Trustee, the Conversion ~~Date~~Agent (if other than the Trustee); provided, ~~but~~ however, that the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Cash Percentage Notice ~~to converting Holders~~ no later than the Close of Business on the ~~Trading~~ Business Day immediately ~~following~~ preceding [●], 202[●]5 to all Holders, the ~~relevant~~ Trustee and the Conversion ~~Date~~ Agent (if other than the Trustee) with respect to ~~which such Settlement Notice applies (or, in the case of any~~ all conversions occurring on or after [●], 202[●]. (ii) If the ~~22nd Scheduled~~ Company timely elects to specify a Cash Percentage, the amount of cash that the Company will deliver in lieu of all or applicable portion of the shares of Common Stock comprising the Daily Share Amount for any Trading Day ~~immediately prior to~~ in the ~~Maturity Date~~applicable Observation Period will equal the Daily Net Cash Portion. The number of shares of Common Stock, ~~no later than~~ if any, that the ~~22nd Scheduled~~ Company shall deliver in respect of each Trading Day ~~immediately prior~~ in the applicable Observation Period will be a percentage of the Daily Share Amount equal to 100% minus the ~~Maturity Date).~~ Cash Percentage. (iii) If the Company does not ~~elect~~ timely specify a ~~Settlement Method prior to the deadline set forth in the immediately preceding sentence~~ Cash Percentage for a Conversion Date, the Company shall no longer have the right to ~~elect~~ specify a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to ~~conversions on such Conversion Date~~ the applicable conversion and shall be required to settle 100% of the Daily Share Amount for each Trading Day of the applicable Observation Period with shares of Common Stock, if any; provided that the Company shall ~~be deemed to have elected Combination Settlement~~ pay cash in ~~respect~~ lieu of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount fractional shares otherwise issuable upon conversion of Securities in ~~such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000~~accordance with Section 10.03. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver Notwithstanding anything herein to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ the SL Securities with a Cash Percentage of [●]%. The Company may only change the Cash Percentage with respect to any conversion of SL Securities by ~~Combination~~ delivering a written notice that specifies the new Cash Percentage (“SL Settlement Notice”) to the Holders of SL Securities (with a ~~Specified Dollar Amount~~ copy to the Trustee and the Conversion Agent (if other than the Trustee)), and such newly specified Cash Percentage shall be effective no earlier than ten (10) Trading Days after the date on which such SL Settlement Notice was received by the Holders of ~~$1,000 per $1,000 principal amount of~~ the SL Securities. In 5 NTD: To be three months prior to the ~~event~~ maturity date. (v) Upon the conversion of any ~~Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser~~ Securities, the ~~relevant Observation Period for purposes of determining~~ Company shall promptly (x) determine the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common ~~Stock,~~ Stock and ~~in any event within one~~ (1y) ~~Business Day following the last day of the Observation Period, the Company shall~~ notify the ~~Trustee and~~ Trustee, the Conversion Agent (if other than the Trustee) and such Holder(s) of Securities being so converted of the Daily Settlement ~~Amounts or the Daily Conversion Values, as the case may be,~~ Amount and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee and the Holders of the same. (c) In Except as set forth in Section 10.14(c) and Section 10.11, in the case of any conversion of ~~Securities other than the Purchaser~~ Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third first Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, ~~that (i) to~~ the ~~extent all or a~~ cash portion of the Conversion Obligation ~~is paid in cash, such cash~~ shall not be due until the earlier of (A) the 30th ~~Business Day~~ calendar day immediately following the relevant Conversion Date and (B) the Maturity Date; provided further, ~~and (ii)~~ that to the extent ~~all or~~ a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares of Common Stock shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ Securities being converted that is delivered to the Company on or prior to the ~~second Business Day immediately following the relevant~~ Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ first Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ first Business Day immediately following the relevant Conversion Date); provided, however, that if the delivery date is (or is deemed to be) the first Business Day immediately following the relevant Conversion Date and the Company is unable to deliver such shares on such date using commercially reasonable efforts to do so, it shall not constitute an Event of Default if such shares are so delivered on the second Business Day immediately following the relevant Conversion Date. ~~Such~~ In the case of a conversion of a Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) ~~Solely with respect to Purchaser Securities, accrued~~ Accrued and unpaid interest (accrued at the rate applicable to PIK interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion ~~Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to~~ Date shall be paid ~~first out of~~ in cash to the ~~cash paid~~ applicable Holders upon ~~such~~ conversion, together with the Conversion Obligation. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Investment Agreement (Viavi Solutions Inc.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall ~~pay or deliver, as the case may be,~~ deliver to the converting Holder, in respect of each $1,000 principal amount of Securities being converted~~, cash ("Cash Settlement")~~, Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election10.03, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to ~~the~~ such converting Holder ~~in respect of each $1,000 principal amount of Securities being converted~~ a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Securities to be converted, divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the applicable Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03)~~; (B) if~~ . Settlement shall occur on the ~~Company elects to satisfy its~~ second Business Day immediately following the relevant Conversion ~~Obligation in respect of~~ Date, unless such ~~conversion by Cash Settlement~~Conversion Date occurs on or following June 15, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be2021, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount which case settlement shall ~~be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending~~ occur on the ~~Trading Day immediately preceding such Conversion~~ Maturity Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date ~~and the last Trading Day of the relevant Observation Period, as applicable,~~ in accordance with the requirements set forth herein and notify the Trustee and the Holders of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~later of (i) the third~~ second Business Day immediately following the relevant Conversion ~~Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable~~Date. In the case of any conversion of ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that ~~(i) to~~ the ~~extent all or a portion~~ shares of Common Stock due in respect of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ SL Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an SL Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SL Securities subject to conversion. ~~If any shares of Common Stock are due to converting Holders, the~~ The Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion~~. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash ~~to the Conversion Agent on behalf of the Company~~ of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Cornerstone OnDemand Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~ June 15, 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions described in ~~any period~~the immediately preceding clauses (i) and (ii), as the case may be), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date ~~to which such Settlement Notice applies~~ (or, in the case of any conversions occurring on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 15, 2024, no later than ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 15, 2024). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SLA Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of ~~Purchaser~~ SLA Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SLA Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SLA Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SLA Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SLA Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SLA Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SLA Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the ~~third~~ second Business Day immediately following the relevant Conversion Date and (ii) the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SLA Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that ~~(i)~~ to the extent all or a portion of the Conversion Obligation is to be paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date; and provided further, ~~and (ii)~~ that to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ SLA Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SLA Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder~~'s nominee(s)~~ ’s nominee or ~~transferee(s)~~nominees, certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~13.01, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Motorola Solutions, Inc.)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject to this Section 10.02 and Section 10.11~~To convert a Security, ~~upon~~ a Holder must satisfy the requirements of PARAGRAPH 9 of the Securities. Upon conversion of ~~any~~ a Holder's Security, the Company shall ~~pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with~~ deliver cash, ~~if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement")~~ ADSs or a combination of cash and ~~Common Stock~~ADSs to such Holder as follows, ~~together~~ provided that all Holders' rights with ~~cash, if applicable, in lieu~~ respect to conversion of ~~delivering any fractional shares of Common Stock in accordance with Section 10.03~~ the Securities and the Company's obligation to deliver ADSs at the Conversion Rate upon such conversion (the "~~Combination Settlement~~CONVERSION OBLIGATION"), at are subject, in their entirety, to the Company' right, in its ~~election~~sole and absolute discretion, ~~as set forth~~ to elect to satisfy such Conversion Obligation in any manner permitted pursuant to this ~~Section~~ SECTION 10.02.: (i) ~~All conversions for~~ the Company shall give notice, which shall be irrevocable, to Holders through the ~~relevant~~ Conversion Agent of the method it will choose to satisfy its Conversion Obligation at any time on or before the date that is the second (2nd) Scheduled Trading Day following the Conversion Date (such period, the "SETTLEMENT NOTICE PERIOD") provided that if the related Conversion Date occurs ~~on or after~~ during the ~~22nd~~ period that begins, and includes, the twenty-seventh (27th) Scheduled Trading Day ~~immediately~~ preceding [-], such notice of the Company's election shall be given to Holders no later than the twenty-eighth (28th) Scheduled Trading Day prior to [-]. If the ~~Maturity Date shall be settled using~~ Company fails to provide notice within the ~~same~~ Settlement ~~Method. (ii) Except for any conversions described in the immediately preceding clause (i)~~Notice Period, the Company shall ~~use~~ satisfy its Conversion Obligation only in ADSs (and cash in lieu of fractional ADSs). If the ~~same Settlement Method~~ Company chooses to satisfy any portion of its Conversion Obligation in cash, it will specify the amount to be satisfied in cash as a percentage of the Conversion Obligation or as a fixed dollar amount for each US$1,000 principal amount of the Securities. The Company shall treat all ~~conversions of Securities occurring~~ Holders converting on the same ~~Conversion Date~~calendar day in the same manner; however, ~~but~~ the Company shall not have any obligation to ~~use~~ settle Conversion Obligation arising on different calendar day as in the same ~~Settlement Method with respect to conversions that occur on different Conversion Dates~~manner. (~~iii~~ii) IfThe Company may, in ~~respect~~ lieu of ~~any~~ sending individual notices of its election, send one notice, which shall be irrevocable, to all Holders (with a copy to the Conversion ~~Date (or for all conversions in any period),~~ Agent and the ~~Company elects to deliver a notice (the "Settlement Notice"~~Trustee) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If method the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects chooses to satisfy its Conversion Obligation with respect to ~~any~~ (i) all conversions of Securities that have been selected for redemption; and (ii) all conversions of Securities that occur on or after the twenty-seventh (27) Scheduled Trading Day preceding [-]. (iii) The consideration to be paid upon the conversion of ~~Purchaser~~ any Security ("CONVERSION SETTLEMENT DISTRIBUTION") shall consist of cash, ADSs or a combination thereof, as selected by the Company, to be computed and delivered as set forth below: (a) if the Company elects to satisfy the entire Conversion Obligation in ADSs, the Conversion Settlement Distribution shall be a number of ADSs equal to (A) the aggregate principal amount of the Securities to be converted divided by ~~Combination~~ US$1,000, multiplied by (B) the Conversion Rate, plus cash for any fractional shares pursuant to SECTION 10.02(B); (b) if the Company elects to satisfy the entire Conversion Obligation in cash, the Conversion Settlement ~~with~~ Distribution shall be cash in an amount equal to the product of: (1) a ~~Specified Dollar Amount~~ number equal to the product of (x) the aggregate principal amount of Securities to be converted divided by $~~1,000~~ 1,000, multiplied by (y) the Conversion Rate; and (2) the average Daily VWAP of the ADSs during the twenty (20) consecutive VWAP Trading Day period beginning on and including: (i) for Securities converted during the period that begins, and includes, the twenty-seventh (27) Scheduled Trading Day immediately preceding [-], the twenty-fourth (24) Scheduled Trading Day immediately preceding [-]; and (ii) in all other instances, the second (2) VWAP Trading Day immediately after the Conversion Date (such twenty (20) consecutive VWAP Trading Day period being the "CASH SETTLEMENT AVERAGING PERIOD"); and (c) if the Company elects to satisfy a percentage or a fixed amount (other than 100%) of the Conversion Obligation per $US$1,000 principal amount of ~~Securities. In the event any Holder(s) of Purchaser~~ Securities ~~exercises its right to convert all or any portion of such Purchaser Securities~~in cash, the ~~relevant Observation Period for purposes~~ Conversion Settlement Distribution shall consist of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (~~if applicable~~1) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash ~~payable in lieu of delivering any fractional shares of Common Stock~~so elected ("CASH AMOUNT"), ~~and in any event within one (1) Business Day following~~ provided that if such Cash Amount exceeds the ~~last day~~ Conversion Amount of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Companyconverted, then the Company shall deliver such ~~shares on the third Business Day immediately following the relevant~~ Conversion ~~Date). Such written notice shall include a certification therein that the beneficial owners delivering~~ Amount in cash in lieu of such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issuedCash Amount, and ~~deliver or cause to be delivered to such Holder, or such Holder's nominee(s~~(2) ~~or transferee(s), certificates or~~ a ~~book-entry transfer through the Depository for the full~~ number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the ADSs per US$1,000 principal amount of ~~such Purchaser Security and accrued and unpaid interest, if any,~~ Securities equal to, ~~but not including~~for each VWAP Trading Day of the Cash Settlement Averaging Period, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.greater of:

Appears in 1 contract

Samples: Indenture (Yingli Green Energy Holding Co LTD)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a notice of redemption with respect to the Securities and prior to the ~~Maturity Date~~ related Redemption Date, shall be settled using the same Settlement Method. (ii) ~~Except for any conversions described in the immediately preceding clause (i), the~~ The Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion ~~Date~~Date (except for any conversions described in the immediately preceding clause (i)), but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions ~~occurring~~ for which the relevant Conversion Date occurs (x) after the date of issuance of a notice of redemption and prior to the related Redemption Date, in such notice of redemption or (y) on or after the 22nd Scheduled Trading Day immediately ~~prior to~~ preceding the Maturity Date, no later than the 22nd Scheduled Trading Day immediately ~~prior to~~ preceding the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of Atairos Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ Atairos Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Atairos Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Atairos Settlement Notice”) to the Holders of the Atairos Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Atairos Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ Atairos Securities exercises its right to convert all or any portion of such ~~Purchaser~~ Atairos Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Atairos Securities shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date.~~ Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Atairos Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. (vi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ Atairos Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ Atairos Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ Atairos Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date (in the case of Physical Settlement) and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation ~~Period, as applicable~~Period (in the case of Combination Settlement or Cash Settlement). In the case of any conversion of ~~Purchaser~~ Atairos Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ Atairos Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Atairos Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~13.01, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Groupon, Inc.)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject to this Section 10.02 and Section 10.11, upon conversion of any~~ To convert a Security, a Holder must satisfy the ~~Company shall pay or deliver, as~~ requirements of paragraph 8 of the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock Securities. If a Security is tendered for conversion in accordance with ~~Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock~~this Article XI, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02.then: (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Companydeliver, through the ~~Trustee~~Conversion Agent, ~~shall deliver such Settlement Notice to converting Holders no later than~~ the ~~Close of Business on the Trading Day immediately~~ following ~~the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior~~ to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on Holder of such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as followsSecurity: (Aa) an amount (the “Principal Return”) in cash equal to the sum of the Daily Principal Return for each Trading Day in the Cash Settlement Averaging Period for such conversion; and (b) if the ~~Company elects to satisfy its Conversion Obligation~~ sum of the Daily Net Shares for each Trading Day in ~~respect of~~ the Cash Settlement Averaging Period for such conversion ~~by Physical Settlement~~is greater than zero (0), ~~the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted~~ a certificate for a number of shares of Common Stock (the “Net Shares”) equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Datesum; provided, however, that the ~~Person in whose name any~~ Company shall not issue fractional shares of ~~the~~ Common Stock and shall ~~be issuable~~ instead deliver cash (in addition to any other consideration payable upon such ~~conversion shall become~~ conversion) in an amount equal to the ~~holder of record~~ value of such ~~shares as~~ fraction computed on the basis of the ~~Close~~ Volume-Weighted Average Price per share of ~~Business~~ Common Stock on ~~such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or~~ the last Trading Day of such Cash Settlement Averaging Period; (ii) the ~~relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to~~ Company shall deliver such ~~time~~Principal Return and, ~~a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to~~ if applicable, such ~~Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine~~ Net Shares as soon as practicable following the Conversion Date ~~and~~ applicable to such conversion, but in no event more than three (3) Business Days after the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the ~~written notice referred~~ Cash Settlement Averaging Period applicable to ~~in the second proviso below~~such conversion; provided, however, that ~~(i)~~ any Make-Whole Consideration payable pursuant to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares Section 11.14 shall be delivered by the Company within the time period specified in Section 11.14(D); and (iii) at and after the close of business on the ~~day specified~~ last Trading Day in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting HoldersCash Settlement Averaging Period, the ~~Company shall issue or cause to be issued, and deliver or cause to be delivered to~~ person in whose name such ~~Holder, or~~ certificate representing such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interestNet Shares, if any, is to be registered shall be ~~paid to the Holder upon conversion. Upon the Company's settlement~~ treated as a stockholder of ~~the full Conversion Obligation~~ record with respect to ~~a Purchaser Security~~such Net Shares, and all rights of the ~~Company shall pay the principal amount~~ Holder of such ~~Purchaser~~ Security ~~and accrued and unpaid interest~~shall terminate, ~~if any, to, but not including,~~ other than the ~~relevant settlement date of any conversion. (e) With respect~~ right to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by receive the consideration ~~paid to the Holder~~ deliverable upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Dateas provided herein; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specifiedthat, with respect to any Net Shares due upon such conversion as Make-Whole Consideration in accordance with Section 11.14, such person shall be treated as a stockholder of record of such Net Shares due as Make-Whole Consideration as of the close of business on the later of (1) the date such Holder surrendered such Security for such conversion; (2) the last Trading Day in the applicable Cash Settlement Averaging Period; and (3) the Effective Date of the applicable Make-Whole Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Supplemental Indenture (Kendle International Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.03, Section 10.02 and Section ~~10.11~~10.12, upon conversion of any Security, the Company shall ~~pay or deliver, as the case may be,~~ deliver to the converting Holder, in respect of each $1,000 principal amount of Securities being converted~~, cash ("Cash Settlement")~~, Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election10.04, as set forth in this Section ~~10.02~~10.03. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to ~~the~~ such converting Holder ~~in respect of each $1,000 principal amount of Securities being converted~~ a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Securities to be converted, divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the applicable Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section ~~10.03~~10.04); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant . Subject to Section ~~10.02(a)(iii)~~10.03(c) ~~to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement~~below, ~~the Company~~ settlement shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending occur on the ~~Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts~~ second (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (12nd) Business Day immediately following the ~~last day of~~ relevant Conversion Date, unless such Conversion Date occurs on or following June 15, 2030, in which case settlement shall occur on the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determinationMaturity Date. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date ~~and the last Trading Day of the relevant Observation Period, as applicable,~~ in accordance with the requirements set forth herein and notify the Trustee and the Holders of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ Investor Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~later of (i) the third~~ second Business Day immediately following the relevant Conversion ~~Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable~~Date. In the case of any conversion of ~~Purchaser~~ Investor Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that ~~(i) to~~ the ~~extent all or a portion~~ shares of Common Stock due in respect of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ Investor Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an Investor Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Investor Securities subject to conversion. ~~If any shares of Common Stock are due to converting Holders, the~~ The Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) ~~Solely with respect to Purchaser Securities, accrued~~ Accrued and unpaid ~~interest~~interest on the Securities to, but excluding, the applicable Conversion Date, if any, shall be paid in cash to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash ~~to the Conversion Agent on behalf of the Company~~ of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date~~ Date, or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to ~~Section 13.03~~Article 13, ~~the Company has specified~~ a Redemption Date ~~that~~ is specified after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount (and accrued and unpaid interest thereon) of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder upon the written order of the Holder of the Security so surrendered a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Azz Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method ~~and~~ and, in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SL Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ SL Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of SL Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “SL Settlement Notice”) to the Holders of the SL Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such SL Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ SL Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SL Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SL Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SL Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SL Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SL Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee and the converting Holder(s) of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SL Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the ~~third~~ second Business Day immediately following the relevant Conversion Date and (ii) the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SL Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ SL Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an SL Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SL Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Amc Entertainment Holdings, Inc.)

Conversion Procedure and Payment Upon Conversion. (a) ~~Subject~~ To convert its Security, a Holder of a Physical Security must (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to ~~this~~ the Conversion Agent, (ii) surrender the Security to the Conversion Agent, (iii) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, (iv) pay all transfer or similar taxes if required pursuant to Section ~~10.02~~ 10.04 and (v) pay funds equal to interest payable in on the next Interest Payment Date required by Section ~~10.11~~10.02(c). If a Holder holds a beneficial interest in a Global Security, ~~upon conversion of any~~ to convert such Security, the ~~Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together~~ Holder must comply with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. clauses (iv) ~~The cash, Common Stock or combination of cash~~ and ~~Common Stock~~ (v) above and the Depositary’s procedures for converting a beneficial interest in ~~respect of any~~ a Global Security. Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to each converting Holder, through the ~~converting Holder in respect of each $1,000 principal amount of Securities being converted~~ Conversion Agent, a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Securities to be converted, divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the relevant Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03)~~; (B) if~~ . Settlement shall occur on the ~~Company elects to satisfy its~~ third Business Day immediately following the relevant Conversion ~~Obligation in respect of~~ Date, unless such ~~conversion by Cash Settlement~~Conversion Date occurs on or following November 1, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be2015, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount which case settlement shall ~~be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending~~ occur on the ~~Trading Day immediately preceding such Conversion~~ Maturity Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date~~; provided~~, ~~however, that~~ and the Person in whose name ~~any~~ the shares of ~~the~~ Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving shares of Common Stock upon conversion shall not be entitled to any rights relating to such shares of Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the Conversion Date ~~and the last Trading Day~~ with respect to a conversion of a Security pursuant hereto, all rights of the ~~relevant Observation Period~~Holder of such Security shall terminate, ~~as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities~~ other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Security as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date provided herein and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued ~~and~~ but unpaid interest, if any, ~~shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of~~ on such ~~Purchaser~~ Security ~~and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion~~as provided herein. (ec) ~~With respect to any Security except a Purchaser Security and except to the extent otherwise~~ Except as provided in the Securities or in this ~~Section 10.02(e)~~Article 10, no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity ~~Date,~~ Date or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~3.01~~3.02, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date or (iii) is surrendered for conversion after~~ Date; provided further that, if the ~~Close of Business on a Record Date for the payment of an installment of interest and on or~~ Company shall have, prior to the ~~Open~~ Conversion Date with respect to a Security, defaulted in a payment of ~~Business~~ interest on such Security, then in no event shall the ~~related Interest Payment Date, where,~~ Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to Section ~~13.03,~~ 2.12 or otherwise (it being understood that nothing in this Section 10.02(c) shall affect the ~~Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date~~Company’s obligations under Section 2.12). (gd) If a Holder converts more than one Security at the same time, the ~~Conversion Obligation with respect to~~ full number of shares of Common Stock issuable upon such ~~Securities~~ conversion (and, as a result, the amount of cash deliverable in lieu of any fractional share of Common Stock) shall be based on the total principal amount of all Securities so converted. (he) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. (f) If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

Appears in 1 contract

Samples: Indenture (Quantum Corp /De/)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~ June 1, 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions described in ~~any period~~the immediately preceding clauses (i) and (ii), as the case may be), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date ~~to which such Settlement Notice applies~~ (or, in the case of any conversions occurring on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 1, 2020, no later than ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 1, 2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SLP Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of ~~Purchaser~~ SLP Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SLP Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SLP Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SLP Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SLP Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SLP Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that ~~(i)~~ to the extent all or a portion of the Conversion Obligation is to be paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date; and provided further, ~~and (ii)~~ that to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ SLP Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification ~~therein~~ therin that the beneficial owners delivering such written notice are ~~holders~~ SLP Entities that hold beneficial interests in the ~~Purchaser~~ SLP Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder~~'s nominee(s)~~ ’s nominee or ~~transferee(s)~~nominees, certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity ~~Date,~~ Date or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Motorola Solutions, Inc.)

Conversion Procedure and Payment Upon Conversion. 9.4.1 Not later than three (a3) ~~Subject to this Section 10.02 and Section 10.11, upon conversion of~~ Trading Days after any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date ~~occurs on or after~~ (the ~~22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i~~“Delivery Date”), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Perioddesignated transfer agent, as applicable, ~~in accordance with~~ shall issue and deliver to the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation DTC account on the ~~later of~~ Holder’s behalf via the Deposit Withdrawal Agent Commission System (i“DWAC”) ~~the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period,~~ as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the ~~written notice referred to~~ Conversion Notice, registered in the ~~second proviso below; provided, however, that (i) to the extent all or a portion~~ name of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all Holder or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holdersits designee, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which the Holder is entitled, free from any restrictive legend. If in the case of any Conversion Notice such shares are not delivered to or as directed by the applicable Holder by the Delivery Date, the Holder shall be entitled by written notice to the Company at any time on or before its receipt of such shares, to rescind such conversion, in ~~satisfaction~~ which event the Company shall immediately return its Securities tendered for conversion, whereupon the Company and the Holder shall each be restored to their respective positions immediately prior to the delivery of such notice of revocation, except that any amounts described in this Section 9.4 shall be payable through the date notice of rescission is given to the Company. The Company understands that a delay in the delivery of the ~~Company's Conversion Obligation. (d) Solely with respect~~ shares of Common Stock upon conversion of the Securities beyond the Delivery Date could result in economic loss to ~~Purchaser Securities, accrued and unpaid interest, if any, shall be paid~~ the Holder. If the Company fails to deliver to the Holder ~~upon conversion. Upon~~ such shares via DWAC by the ~~Company's settlement of the full Conversion Obligation with respect to a Purchaser Security~~Delivery Date, the Company shall pay to such Holder, in cash, an amount per Trading Day for each Trading Day until such shares are delivered via DWAC, together with interest on such amount at a rate of 15% per annum, accruing until such amount and any accrued interest thereon is paid in full, equal to the greater of (A) (i) 1% of the aggregate principal amount of the Securities requested to be converted for each of the first five (5) Trading Days after the Delivery Date and (ii) 2% of the aggregate principal amount of the Securities requested to be converted for each Trading Day thereafter and (B) $2,000 per day (which amount shall be paid as liquidated damages and not as a penalty). Nothing herein shall limit a Holder’s right to pursue actual damages for the Company’s failure to deliver certificates representing shares of Common Stock upon conversion within the period specified herein and such ~~Purchaser Security~~ Holder shall have the right to pursue all remedies available to it at law or in equity (including, without limitation, a decree of specific performance and/or injunctive relief). Notwithstanding anything to the contrary contained herein, the Holder shall be entitled to withdraw a Conversion Notice, and upon such withdrawal the Company shall only be obligated to pay the liquidated damages accrued in accordance with this Section through the date the Conversion Notice is withdrawn. 31 In addition to any other rights available to the Holder, if the Company fails to cause its transfer agent to transmit via DWAC the shares of Common Stock issuable upon conversion of this Note on or before the Delivery Date, and ~~unpaid interest~~if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon conversion of the Securities which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of shares of Common Stock issuable upon conversion of the Securities that the Company was required to deliver to the Holder in connection with such conversion times (B) the price at which the sell order giving rise to such purchase obligation was executed, toand (2) at the option of the Holder, ~~but~~ either reinstate the portion of the Securities and equivalent number of shares of Common Stock for which such conversion was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (1) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the ~~relevant settlement date~~ Company’s failure to timely deliver shares of Common Stock upon conversion of the Securities as required pursuant to the terms hereof. 9.4.2 If a Security is tendered for conversion or upon a mandatory conversion pursuant to Section 9.3 in accordance with this ARTICLE IX, then: (a) the Company shall deliver, through the Conversion Agent, the following to the Holder of such Security: (i) a certificate for, or to the extent permissible, in book entry form through DTC, the number of full shares of Common Stock into which the Securities are converted (the “Conversion Shares”); and (ii) any ~~conversion~~cash payment for fractional shares (the “Cash Payment”). (eb) ~~With~~ the Company shall deliver such Conversion Shares and such cash interest Payment or Securities in lieu of interest as soon as practicable following the Conversion Date applicable to such conversion, but in no event more than two (2) Business Days after the Conversion Date; and (c) at and after the close of business on the Conversion Date, the person in whose name such certificate representing such Conversion Shares is to be registered shall be treated as a stockholder of record with respect to ~~any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security~~such Conversion Shares, and ~~accrued interest~~all rights of the Holder of such Security shall terminate, ~~if any, will be deemed~~ other than the right to ~~be paid by~~ receive the consideration ~~paid to the Holder~~ deliverable upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security ~~shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~as provided herein. ~~(f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.~~ 9.4.3 If any Holder surrenders a Security for conversion after the ~~Close~~ close of ~~Business~~ business on the Record Date for the payment of an installment of interest ~~but~~ and prior to the ~~Open of Business on the next~~ related Interest Payment Date, then, notwithstanding such conversion, the ~~full amount of~~ interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the ~~Close~~ close of ~~Business~~ business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. ~~(g)~~ 9.4.4 If a Holder converts more than one Security at the same time, the ~~Conversion Obligation with respect to~~ number of full shares of Common Stock issuable upon such ~~Securities~~ conversion, if any, shall be based on the total principal amount of all Securities so converted. ~~(h)~~ 9.4.5 Upon surrender of a Security that is converted in part, the ~~Trustee~~ Trustee, upon receipt of a Company order, shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. 9.4.6 If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

Appears in 1 contract

Samples: Indenture (Genta Inc De/)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject to~~ To convert a Security, a Holder must satisfy the requirements of paragraph 9 of the Securities. If a Security is tendered for conversion in accordance with this ~~Section 10.02 and Section 10.11~~Article ‎XI, then upon ~~conversion of any Security~~conversion, the Company ~~shall~~ will (i) pay or deliver, as the case ~~may be, to the converting Holder, in respect of~~ may‎be,‎either‎cash‎(“cash‎settlement”),‎Common‎Shares‎(“physical‎settlement”)‎or‎a‎ 68 Doc#: US1:11364518v24 combination‎of‎cash‎and‎Common‎Shares‎(“combination‎settlement”),‎at‎its‎election‎and‎ as described below (each ~~$1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering~~ such settlement method,‎a‎“settlement‎method”)‎and‎(ii)‎pay‎or‎ deliver any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, Conversion Make-Whole Payment payable as ~~set forth~~ described in this ~~Section 10.02.~~ Article ‎XI. Except for any conversion for which the relevant Conversion Date is on or after the 13 th Trading Day prior to July 1, 2022, the Company will use the same settlement method for all conversions with the same Conversion Date, but the Company will not have any obligation to use the same settlement method with respect to conversions with different Conversion Dates. If the Company elects a settlement method, the Company will inform Holders so converting through the Conversion Agent of the settlement method it has selected no later than the close of business on the trading day immediately following the related Conversion Date (~~i) All~~ or in the case of any conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i)July 1, the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date2022, no later than ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~July 1, 2022). If the Company does not timely elect a ~~Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date~~settlement method, the Company ~~shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall~~ will be deemed to have elected ~~Combination Settlement~~ physical settlement in respect of its ~~Conversion Obligation on such Conversion Date~~conversion obligation, ~~and~~ as described below. If the ~~Specified Dollar Amount per $1,000 principal~~ Company elects combination settlement, but it does not timely notify converting Holders of the specified dollar amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities~~. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal~~ , such specified dollar amount ~~of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall~~ will be deemed to be $1,000~~. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "~~. Settlement ~~Amount") shall~~ amounts will be computed as follows: (Ai) if the Company elects (or is deemed to ~~satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~have elected) physical settlement, the Company ~~shall deliver~~ will deliver, through its transfer agent for its Common Shares, to ~~the~~ each converting Holder ~~in respect~~ a number of ~~each $1,000~~ Common Shares equal to (1) (A) the aggregate principal amount of Securities ~~being converted a number of shares of Common Stock equal~~ to be converted, divided by (B) $1,000 multiplied by (2) the Conversion Rate in effect on the relevant Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and clause (ii) below or at its election, round up the ~~third Business Day immediately following the last Trading Day~~ number of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) Common Shares deliverable to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares next higher whole number of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion DateShares). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.;

Appears in 1 contract

Samples: Indenture

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall ~~pay or deliver, as the case may be,~~ deliver to the converting Holder, in respect of each $1,000 principal amount of Securities being converted~~, cash ("Cash Settlement")~~, Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election10.03, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to ~~the~~ such converting Holder ~~in respect of each $1,000 principal amount of Securities being converted~~ a number of shares of Common Stock equal to (i) (A) the sum of (x) the aggregate principal amount of Securities to be converted, plus (y) the accrued and unpaid interest on such Securities to, but excluding, the applicable Conversion Date (accrued at the rate applicable to PIK Interest), divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the applicable Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant . Subject to Section ~~10.02(a)(iii)~~10.02(c) ~~to satisfy its~~ below, settlement shall occur on the second Business Day immediately following the relevant Conversion ~~Obligation in respect of~~ Date, unless such ~~conversion by Combination Settlement~~Conversion Date occurs on or following March 15, ~~the Company shall pay or deliver to the converting Holder, as the case may be~~2029, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount which case settlement shall ~~be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending~~ occur on the ~~Trading Day immediately preceding such Conversion~~ Maturity Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date ~~and the last Trading Day of the relevant Observation Period, as applicable,~~ in accordance with the requirements set forth herein and notify the Trustee and the Holders of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~later of (i) the third~~ second Business Day immediately following the relevant Conversion ~~Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable~~Date. In the case of any conversion of ~~Purchaser~~ SL Securities, the Company shall deliver and, if applicable, pay ~~or deliver, as the case may be,~~ the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that ~~(i) to~~ the ~~extent all or a portion~~ shares of Common Stock due in respect of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ SL Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an SL Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SL Securities subject to conversion. ~~If any shares of Common Stock are due to converting Holders, the~~ The Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) ~~Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the~~ The Company's ’s settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion~~. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash ~~to the Conversion Agent on behalf of the Company~~ of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date~~ Date, or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~3.02, ~~the Company has~~ an Investor Repurchase Date is specified ~~a Redemption Date that is~~ after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount (and accrued and unpaid interest thereon) of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Zuora Inc)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(a)(ii)(A), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, ~~cash ("Cash Settlement"), Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~shares of Common Stock~~ ADSs in accordance with Section 10.03 ("“Physical Settlement"”) or or, if elected by the Company and agreed by the converting Holder, a combination of cash and ~~Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~shares of Common Stock~~ ADSs in accordance with Section 10.03 ("“Combination Settlement~~"), at its election,~~ ”) as set forth in this Section 10.02. For the avoidance of doubt, a Holder shall not have any right to demand which Settlement Method the Company uses to satisfy the Conversion Obligation. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date (or for all conversions in any period)~~Date, the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the ~~Company, through the Trustee,~~ Company shall deliver such Settlement Notice to converting Holders (with a copy to the Trustee and the Conversion Agent) no later than the Close of Business on the Trading Day (or in the case of Global Securities, no later than the Close of Business on the third Trading Day) immediately following the relevant Conversion ~~Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity~~ Date~~, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date)~~. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect ~~Cash~~ Combination Settlement ~~or Physical Settlement with respect to conversions on such Conversion Date~~ and the Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion ~~Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000~~Obligation. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, in the event that the Company elects Combination Settlement on the Settlement Notice, the converting Holder shall deliver a written notice to the Company (with a copy to the Trustee and the Conversion Agent) indicating whether it agrees to the use of Combination Settlement before the 20th Business Day after the date of delivery of the Settlement Notice to such Holder, provided that if such Holder fails to deliver such notice before the end of such 20 Business Day period, it shall be deemed to have agreed to the use of Combination Settlement. In the event that the converting Holder indicates it does not agree to the use of the Combination Settlement, the Company shall not be entitled to use Combination Settlement with respect to the Securities elected to be converted by such Holder and such Securities shall be settled by Physical Settlement. (ivii) The ~~cash, Common Stock~~ ADSs or combination of cash and ~~Common Stock~~ ADSs in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional ~~shares~~ ADSs as described in Section 10.03);; and (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by ~~Cash Settlement,~~ Combination Settlement and the ~~Company shall pay to~~ use of Combination Settlement is agreed by the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to accordance with Section ~~10.02(a)(iii~~10.02(a)(i)~~) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement~~, the Company shall pay or ~~deliver to the converting Holder~~deliver, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading ~~Day~~ Days during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period~~ADSs, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. To convert its Security, a Holder of a Physical Security must (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to the Conversion Agent, (ii) surrender the Security to the Conversion Agent, (iii) furnish appropriate endorsements and transfer documents to the Registrar or Conversion Agent, (iv) pay all transfer or similar taxes if required pursuant to Section 10.04 and (v) pay funds equal to interest payable in on the next Interest Payment Date required by Section 10.02(c). If a Holder holds a beneficial interest in a Global Security, to convert such Security, the Holder must comply with clauses (iv) and (v) above and the Depositary’s procedures for converting a beneficial interest in a Global Security. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical ~~Settlement or a Combination Settlement of the Purchaser Securities~~Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination ~~Settlement other than~~ Settlement), and the Person in ~~respect to~~ whose name the ~~Purchaser Securities~~ADSs shall be issuable upon such conversion shall become the holder of record of such ADSs as of the Close of Business on such Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). Prior to such time, a Holder receiving ~~Common Stock~~ ADSs upon conversion shall not be entitled to any rights relating to such ~~Common Stock~~ADSs, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the Conversion Date ~~and~~ (in the case of Physical Settlement) or the last Trading Day of the relevant Observation ~~Period, as applicable,~~ Period (in ~~accordance with the requirements set forth herein and notify the Trustee of the same. (c) In~~ the case of ~~any~~ Combination Settlement), in each case, with respect to a conversion of ~~Securities~~ a Security pursuant hereto, all rights of the Holder of such Security shall terminate, other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Security as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date provided herein and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued ~~and~~ but unpaid interest, if any, ~~shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of~~ on such ~~Purchaser~~ Security ~~and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion~~as provided herein. (ec) ~~With respect to any Security except a Purchaser Security and except to the extent otherwise~~ Except as provided in the Securities or in this ~~Section 10.02(e)~~Article 10, no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and ~~Common Stock~~ADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date or (iii) is surrendered for conversion after~~ Date; provided further that, if the ~~Close of Business on a Record Date for the payment of an installment of interest and on or~~ Company shall have, prior to the ~~Open~~ Conversion Date with respect to a Security, defaulted in a payment of ~~Business~~ interest on such Security, then in no event shall the ~~related Interest Payment Date, where,~~ Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to Section ~~13.03,~~ 2.12 or otherwise (it being understood that nothing in this Section 10.02(c) shall affect the ~~Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date~~Company’s obligations under Section 2.12). (gd) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (he) The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date (or if the Company elects Combination Settlement but such election is not agreed by the converting Holder pursuant to Section 10.02(a)(i), the third Business Day immediately following the date on which the Company or the Trustee receives written notice from the converting Holder indicating it does not agree to the use of Combination Settlement) and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. If any ADSs are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (f) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. (g) If the last day on which a Security may be converted is not a Business Day, the Security may be surrendered to that Conversion Agent on the next succeeding day that is a Business Day.

Appears in 1 contract

Samples: Indenture (Qunar Cayman Islands Ltd.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu 51 of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SLP Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ SLP Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of SLP Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “SLP Settlement Notice”) to the Holders of the SLP Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such SLP Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ SLP Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SLP Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SLP Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SLP Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SLP Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SLP Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ SLP Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SLP Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date or~~ Date, (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~13.03~~3.02, the Company has specified an Investor Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iv) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.07, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Investment Agreement

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02the applicable Settlement Amount. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no Not later than the ~~Close~~ close of ~~Business~~ business on the ~~Trading~~ Business Day immediately following the relevant Conversion ~~Date~~ Date, the Company may specify the portion of the Daily Share Amount that will be settled in cash (any such portion of the Daily Share Amount to ~~which such Settlement~~ be settled in cash, the “Cash Percentage”) by written notice (a “Cash Percentage Notice”) to each converting Holder, the Trustee, the Conversion Agent (if other than the Trustee); provided, however that the Company shall deliver a Cash Percentage Notice ~~applies~~ no later than the close of business on the Business Day immediately preceding [●], 20293 to all Holders, the Trustee and the Conversion Agent (~~or, in~~ if other than the ~~case of any~~ Trustee) with respect to all conversions occurring on or after [●], 20294. (ii) If the ~~22nd Scheduled~~ Company timely elects to specify a Cash Percentage, the amount of cash that the Company will deliver in lieu of all or applicable portion of the shares of Common Stock comprising the Daily Share Amount for any Trading Day ~~immediately prior to~~ in the ~~Maturity Date~~applicable Observation Period will equal the Daily Net Cash Portion. The number of shares of Common Stock, ~~no later than~~ if any, that the ~~22nd Scheduled~~ Company shall deliver in respect of each Trading Day ~~immediately prior~~ in the applicable Observation Period will be a percentage of the Daily Share Amount equal to 100% minus the ~~Maturity Date).~~ Cash Percentage. (iii) If the Company does not ~~elect~~ timely specify a ~~Settlement Method prior to the deadline set forth in the immediately preceding sentence~~ Cash Percentage for a Conversion Date, the Company shall no longer have the right to ~~elect~~ specify a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to ~~conversions on such Conversion Date~~ the applicable conversion and shall be required to settle 100% of the Daily Share Amount for each Trading Day of the applicable Observation Period with shares of Common Stock, if any; provided that the Company shall ~~be deemed to have elected Combination Settlement~~ pay cash in ~~respect~~ lieu of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount fractional shares otherwise issuable upon conversion of Securities in ~~such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000~~accordance with Section 10.03. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period.[reserved] (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts ~~(if applicable) and the Daily Conversion Values (if applicable)~~ shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts ~~or the Daily Conversion Values, as the case may be,~~ and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts ~~or the Daily Conversion Values, as the case may be,~~ and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the ~~Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the~~ last Trading Day of the relevant Observation ~~Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)~~Period. Prior to such time, a Holder receiving 3 NTD: To be three months prior to the maturity date. 4 NTD: To be three months prior to the maturity date. Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee and the Holders of the same. (c) In Except as set forth in Section 10.14(c) and Section 10.11, in the case of any conversion of ~~Securities other than the Purchaser~~ Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder~~'s nominee(s)~~ ’s nominee or ~~transferee(s)~~nominees, certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued Accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion ~~of such Security. Such accrued interest, if any,~~ shall ~~be deemed to~~ be paid in ~~full rather than cancelled~~cash to the applicable Holders upon conversion, ~~extinguished or forfeited. The Company's settlement of~~ together with the ~~full~~ Conversion ~~Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest~~Obligation; provided, however, that if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities (or specified portions thereof to the extent permitted hereby) so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Investment Agreement (Global Payments Inc)

Conversion Procedure and Payment Upon Conversion. (a) ~~Subject~~ To convert its Security, a Holder of a Physical Security must (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to ~~this~~ the Conversion Agent, (ii) surrender the Security to the Conversion Agent, (iii) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, (iv) pay all transfer or similar taxes if required pursuant to Section ~~10.02~~ 10.04 and (v) pay funds equal to interest payable in on the next Interest Payment Date required by Section ~~10.11~~10.02(c). If a Holder holds a beneficial interest in a Global Security, ~~upon conversion of any~~ to convert such Security, the ~~Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together~~ Holder must comply with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. clauses (iv) ~~The cash, Common Stock or combination of cash~~ and ~~Common Stock~~ (v) above and the Depositary’s procedures for converting a beneficial interest in ~~respect of any~~ a Global Security. Upon conversion of ~~Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~a Holder’s Security, the Company shall deliver to each converting Holder, through the ~~converting Holder in respect of each $1,000 principal amount of Securities being converted~~ Conversion Agent, a number of shares of Common Stock equal to (i) (A) the aggregate principal amount of Securities to be converted, divided by (B) $1,000, multiplied by (ii) the Conversion Rate in effect on the relevant Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in Section 10.03)~~; (B) if~~ . Settlement shall occur on the ~~Company elects to satisfy its~~ third Business Day immediately following the relevant Conversion ~~Obligation in respect of~~ Date, unless such ~~conversion by Cash Settlement~~Conversion Date occurs on or following November 1, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be2017, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount which case settlement shall ~~be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending~~ occur on the ~~Trading Day immediately preceding such Conversion~~ Maturity Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date~~; provided~~, ~~however, that~~ and the Person in whose name ~~any~~ the shares of ~~the~~ Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities)Date. Prior to such time, a Holder receiving shares of Common Stock upon conversion shall not be entitled to any rights relating to such shares of Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the Conversion Date ~~and the last Trading Day~~ with respect to a conversion of a Security pursuant hereto, all rights of the ~~relevant Observation Period~~Holder of such Security shall terminate, ~~as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities~~ other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Security as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date provided herein and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued ~~and~~ but unpaid interest, if any, ~~shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of~~ on such ~~Purchaser~~ Security ~~and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion~~as provided herein. (ec) ~~With respect to any Security except a Purchaser Security and except to the extent otherwise~~ Except as provided in the Securities or in this ~~Section 10.02(e)~~Article 10, no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity ~~Date,~~ Date or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~3.01~~3.02, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment ~~Date or (iii) is surrendered for conversion after~~ Date; provided further that, if the ~~Close of Business on a Record Date for the payment of an installment of interest and on or~~ Company shall have, prior to the ~~Open~~ Conversion Date with respect to a Security, defaulted in a payment of ~~Business~~ interest on such Security, then in no event shall the ~~related Interest Payment Date, where,~~ Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to Section ~~13.03,~~ 2.12 or otherwise (it being understood that nothing in this Section 10.02(c) shall affect the ~~Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date~~Company’s obligations under Section 2.12). (gd) If a Holder converts more than one Security at the same time, the ~~Conversion Obligation with respect to~~ full number of shares of Common Stock issuable upon such ~~Securities~~ conversion (and, as a result, the amount of cash deliverable in lieu of any fractional share of Common Stock) shall be based on the total principal amount of all Securities so converted. (he) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. (f) If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

Appears in 1 contract

Samples: Indenture (Quantum Corp /De/)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of Sponsor Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ Sponsor Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Sponsor Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Sponsor Settlement Notice”) to the Holders of the Sponsor Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Sponsor Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ Sponsor Securities exercises its right to convert all or any portion of such ~~Purchaser~~ Sponsor Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Sponsor Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly and in any event within one (1) Business Day following the last day of the Observation Period (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify in writing the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Securities being so converted its determination of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of its determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser Securities)~~ Sponsor Securities or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ Sponsor Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the ~~Conversion Date and the~~ last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee in writing of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ Sponsor Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ Sponsor Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ Sponsor Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Sponsor Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Physical Security that is converted in part, the Trustee shall authenticate for the Holder a new Physical Security equal in principal amount to the unconverted portion of the Physical Security surrendered. The aforementioned Physical Security surrender shall be to the Company, in its capacity as Conversion Agent for such Physical Securities, at its address listed in Section 13.01 hereof, as such address may be updated in accordance with such Section 13.01. (g) Notwithstanding anything to the contrary herein, the Trustee shall only act as Conversion Agent for any conversions settled through DTC. Any conversions requiring manual processing that cannot be handled through DTC shall be handled by (i) the Company acting as its own conversion agent or (ii) another conversion agent appointed by the Company. The Trustee shall have no liability to the Company or any Holder in connection with any conversions processed outside of DTC. The Trustee shall not be responsible for the actions or inactions taken by the Company or a such other conversion agent and shall have no obligation to take any action whatsoever in connection with a conversion processed outside of DTC.

Appears in 1 contract

Samples: Indenture (NortonLifeLock Inc.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Original Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Original Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Original Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method ~~and~~ and, in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SL Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ SL Securities by Physical Settlement. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of SL Securities by delivering a notice that specifies the newly elected Settlement ~~with a~~ Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “SL Settlement Notice”) to the Holders of ~~$1,000 per $1,000 principal amount~~ the SL Securities, and such newly elected Settlement Method (and, in the case of ~~Securities~~Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such SL Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ SL Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SL Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SL Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SL Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SL Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SL Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee and the converting Holder(s) of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SL Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the ~~third~~ second Business Day immediately following the relevant Conversion Date and (ii) the ~~third~~ second Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SL Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the ~~third~~ second Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the owner(s) (or in the case of Global Securities, beneficial owner(s)) of the ~~Purchaser~~ SL Securities being converted that is delivered to the Company on or prior to the ~~second~~ first Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the ~~third~~ second Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the ~~third~~ second Business Day immediately following the relevant Conversion Date). ~~Such~~ In the case of a conversion of an SL Security in the form of a Global Security, such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SL Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's ’s nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Original Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Company shall issue and the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Amc Entertainment Holdings, Inc.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~ June 1, 2020 shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions described in ~~any period~~the immediately preceding clauses (i) and (ii), as the case may be), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date ~~to which such Settlement Notice applies~~ (or, in the case of any conversions occurring on or after ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 1, 2020, no later than ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~June 1, 2020). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of SLP Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of ~~Purchaser~~ SLP Securities exercises its right to convert all or any portion of such ~~Purchaser~~ SLP Securities, (A) the relevant Observation Period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such SLP Securities shall be the 20 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date and (B) the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of SLP Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of ~~the Purchaser~~ SLP Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than ~~in respect to the Purchaser~~ SLP Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser~~ SLP Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that ~~(i)~~ to the extent all or a portion of the Conversion Obligation is to be paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date; and provided further, ~~and (ii)~~ that to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ SLP Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ SLP Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder~~'s nominee(s)~~ ’s nominee or ~~transferee(s)~~nominees, certificates or a book-entry transfer through the Depository for the full number of ~~shares of~~ Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity ~~Date,~~ Date or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Motorola Solutions, Inc.)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any ~~Security~~Security pursuant to this Indenture, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional ~~shares~~ share of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~the 22nd Scheduled Trading Day immediately~~ [three months prior to the Maturity ~~Date~~ Date] shall be settled using the same Settlement Method. (ii) All conversions of Securities occurring on or after the date of the Notice of Optional Redemption and prior to the related Redemption Date shall be settled using the same Settlement Method. (iii) Except for any conversions described in the immediately preceding ~~clause~~ clauses (i) and (ii), the Company shall use the same Settlement Method for all conversions ~~of Securities~~ occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different ~~Conversion Dates~~Trading Days. (~~iii~~iv) If, in respect of any Conversion Date (or for all conversions described in ~~any period~~the immediately preceding clauses (i) and (ii), as the case may be), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date ~~to which such Settlement Notice applies~~ (or, in the case of any conversions occurring on or after ~~the 22nd Scheduled Trading Day immediately~~ (x) [three months prior to the Maturity Date], no later than ~~the 22nd Scheduled Trading Day immediately~~ [three months prior to the Maturity Date)]) or (y) the date of the Notice of Optional Redemption and prior to the related Redemption Date, in such Notice of Optional Redemption. If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence for a Conversion Date~~sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to conversions on such Conversion Date~~ and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation on such Conversion Date~~Obligation, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $~~1,000~~1,000 (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (ivv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive Trading ~~Day~~ Days during the related Observation Period; and (C) if the Company elects (or is deemed to have ~~elected pursuant to Section 10.02(a)(iii)~~elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or ~~deliver to the converting Holder~~deliver, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading ~~Day~~ Days during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~shares~~ share of Common Stock~~, and in any event within one (1) Business Day following the last day of the Observation Period~~, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. To convert its Security that is convertible pursuant to Section 10.01(a), a Holder of a Physical Security must (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to the Conversion Agent, (ii) surrender the Security to the Conversion Agent, (iii) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, (iv) pay all transfer or similar taxes if required pursuant to Section 10.04 and (v) pay funds equal to interest payable on the next Interest Payment Date required by Section 10.02(c). If a Holder holds a beneficial interest in a Global Security, to convert such Security that is convertible pursuant to Section 10.01(a), the Holder must comply with clauses (iv) and (v) above and the Depositary’s procedures for converting a beneficial interest in a Global Security. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion ~~Date; provided~~Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation Period (in the case of Cash Settlement or Combination Settlement), ~~however, that~~ and the Person in whose name ~~any shares of~~ the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical ~~Settlement or a Combination Settlement of the Purchaser Securities~~Settlement) or the last Trading Day of the relevant Observation Period (in the case of Cash Settlement or Combination ~~Settlement other than in respect to the Purchaser Securities~~Settlement). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. ~~The Company will determine~~ On and after the Close of Business on the Conversion Date ~~and~~ (in the case of Physical Settlement) or the last Trading Day of the relevant Observation ~~Period, as applicable,~~ Period (in ~~accordance with the requirements set forth herein and notify the Trustee of the same. (c) In~~ the case of ~~any~~ Cash Settlement or Combination Settlement), in each case, with respect to a conversion of ~~Securities~~ a Security pursuant hereto, all rights of the Holder of such Security shall terminate, other than the ~~Purchaser Securities, the Company shall pay or deliver, as the case may be,~~ right to receive the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any deliverable or payable upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Security as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date provided herein and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued ~~and~~ but unpaid interest, if any, ~~shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of~~ on such ~~Purchaser~~ Security ~~and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion~~as provided herein. (ec) ~~With respect to any Security except a Purchaser Security and except to the extent otherwise~~ Except as provided in the Securities or in this ~~Section 10.02(e)~~Article 10, no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) that is surrendered ~~for conversion~~ in connection with Optional Redemption and the Company has specified a Redemption Date that is after ~~the Close of Business on~~ a Record Date ~~for~~ and on or prior to the ~~payment of an installment of interest~~ Business Day immediately following the corresponding Interest Payment Date and the conversion occurs after such Record Date and on or prior to the Open of Business on ~~the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to~~ such Interest Payment Date; provided further that, if the Company shall have, prior to the Conversion Date with respect to a Security, defaulted in a payment of interest on such Security, then in no event shall the Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to Section 2.12 or otherwise (it being understood that nothing in this Section 10.02(c) shall affect the Company’s obligations under Section 2.12). (gd) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (he) The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. (f) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. (g) If the last day on which a Security may be converted is not a Business Day, the Security may be surrendered to that Conversion Agent on the next succeeding day that is a Business Day.

Appears in 1 contract

Samples: Note Purchase Agreement (Broadcom Cayman L.P.)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject~~ To convert a Security, a Holder must satisfy the requirements of PARAGRAPH 7 of the Securities. The "CONVERSION DATE" with respect to ~~this Section 10.02 and Section 10.11, upon~~ a Security means the date on which the Holder of the Security has complied with such requirements to convert such Security. Upon conversion of ~~any~~ a Holder's Security, the Company shall ~~pay~~ deliver cash, ADSs or ~~deliver~~a combination of cash and ADSs to such Holder as follows, as provided that all Holders' rights with respect to conversion of the ~~case may be~~Securities and the Company's obligation to deliver ADSs at the Conversion Rate upon such conversion (the "CONVERSION OBLIGATION"), are subject, in their entirety, to the ~~converting Holder~~Company' right, in ~~respect~~ its sole and absolute discretion, to elect to satisfy such Conversion Obligation in any manner permitted pursuant to this SECTION 10.02: (i) the Company shall give notice, which shall be irrevocable, to Holders through the Conversion Agent of the method it will choose to satisfy its Conversion Obligation at any time on or before the date that is the second (2nd) Scheduled Trading Day following the Conversion Date (such period, the "SETTLEMENT NOTICE PERIOD") provided that if the related Conversion Date occurs during the period that begins, and includes, the twenty-seventh (27th) Scheduled Trading Day preceding March 15, 2013 such notice of the Company's election shall be given to Holders no later than the twenty-eighth (28th) Scheduled Trading Day prior to March 15, 2013 . If the Company fails to provide notice within the Settlement Notice Period, the Company shall satisfy its Conversion Obligation only in ADSs (and cash in lieu of fractional ADSs). If the Company chooses to satisfy any portion of its Conversion Obligation in cash, it will specify the amount to be satisfied in cash as a percentage of the Conversion Obligation or as a fixed dollar amount for each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Securities. The Company shall ~~use the same Settlement Method for~~ treat all ~~conversions of Securities occurring~~ Holders converting on the same ~~Conversion Date~~calendar day in the same manner; however, ~~but~~ the Company shall not have any obligation to ~~use~~ settle Conversion Obligation arising on different calendar day as in the same ~~Settlement Method with respect to~~ manner except for conversions that occur on ~~different~~ or after the twenty-seventh (27th) Scheduled Trading Day preceding the Maturity Date. (ii) The Company may, in lieu of sending individual notices of its election, send one notice, which shall be irrevocable, to all Holders (with a copy to the Conversion ~~Dates~~Agent and the Trustee) of the method the Company chooses to satisfy its Conversion Obligation with respect to all conversions of Securities that occur on or after the twenty-seventh (27) Scheduled Trading Day preceding March 15, 2013. (iii) ~~If, in respect~~ The consideration to be paid upon the conversion of any ~~Conversion Date~~ Security ("CONVERSION SETTLEMENT DISTRIBUTION") shall consist of cash, ADSs or ~~for all conversions in any period)~~a combination thereof, as selected by the Company, to be computed and delivered as set forth below: (a) if the Company elects to ~~deliver~~ satisfy the entire Conversion Obligation in ADSs, the Conversion Settlement Distribution shall be a ~~notice~~ number of ADSs equal to (A) the ~~"Settlement Notice")~~ aggregate principal amount of the ~~relevant Settlement Method~~ Securities to be converted divided by $1,000, multiplied by (B) the Conversion Rate, plus cash for any fractional shares pursuant to SECTION 10.02(B); (b) if the Company elects to satisfy the entire Conversion Obligation in ~~respect~~ cash (other than cash in lieu of ~~such Conversion Date (or such period, as the case may be~~fractional ADSs), the ~~Company~~Conversion Settlement Distribution shall be cash in an amount equal to the product of: (1) a number equal to the product of (x) the aggregate principal amount of Securities to be converted divided by $1,000, ~~through~~ multiplied by (y) the ~~Trustee, shall deliver such Settlement Notice to converting Holders no later than~~ Conversion Rate; and (2) the ~~Close~~ average Daily VWAP of ~~Business on~~ the ADSs during the twenty (20) consecutive VWAP Trading Day ~~immediately following~~ period beginning on and including: (i) for Securities converted during the ~~relevant Conversion Date to which such Settlement Notice applies~~ period that begins, and includes, the twenty-seventh (~~or, in the case of any conversions occurring on or after the 22nd~~ 27) Scheduled Trading Day immediately ~~prior to~~ preceding March 15, 2013, the ~~Maturity Date, no later than the 22nd~~ twenty-fourth (24) Scheduled Trading Day immediately ~~prior to~~ preceding March 15, 2013; and (ii) in all other instances, the ~~Maturity Date~~second (2) VWAP Trading Day immediately after the Conversion Date (such twenty (20) consecutive VWAP Trading Day period being the "CASH SETTLEMENT AVERAGING PERIOD")~~. If~~ ; and (c) if the Company ~~does not elect~~ elects to satisfy a ~~Settlement Method prior to~~ percentage or a fixed amount (other than 100%) of the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in ~~such Settlement Notice~~cash, the ~~Specified Dollar~~ Conversion Settlement Distribution shall consist of (1) the amount of cash so elected ("CASH AMOUNT"), provided that if such Cash Amount exceeds the Conversion Amount of the Securities being converted, then the Company shall deliver such Conversion Amount in cash in lieu of such Cash Amount, and (2) a number of ADSs per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum ~~of the Daily Conversion Values~~ of, for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last VWAP Trading Day of the ~~relevant Observation Period (in the case of Combination~~ Cash Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other thingsAveraging Period, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.greater of:

Appears in 1 contract

Samples: Indenture (Suntech Power Holdings Co., Ltd.)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject to~~ To convert a Security, a Holder must satisfy the requirements of paragraph 9 of the Securities. If a Security is tendered for conversion in accordance with this ~~Section 10.02 and Section 10.11~~Article XI, then upon ~~conversion of any Security~~conversion, the Company ~~shall~~ will (i) pay or deliver, as the case may be, ~~to the converting Holder, in respect of each $1,000 principal amount of Securities being converted,~~ either cash (~~"Cash Settlement"~~“cash settlement”), Common ~~Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03~~ Shares (~~"Physical Settlement"~~“physical settlement”) or a combination of cash and Common ~~Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03~~ Shares (~~"Combination Settlement"~~“combination settlement”), at its ~~election~~election and as described below (each such settlement method, a “settlement method”) and (ii) pay or deliver any Conversion Make-Whole Payment payable as ~~set forth~~ described in this ~~Section 10.02.~~ Article XI. Except for any conversion for which the relevant Conversion Date is on or after the 13th Trading Day prior to July 1, 2022, the Company will use the same settlement method for all conversions with the same Conversion Date, but the Company will not have any obligation to use the same settlement method with respect to conversions with different Conversion Dates. If the Company elects a settlement method, the Company will inform Holders so converting through the Conversion Agent of the settlement method it has selected no later than the close of business on the trading day immediately following the related Conversion Date (~~i) All~~ or in the case of any conversions for which the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i)July 1, the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date2022, no later than ~~the 22nd Scheduled Trading Day immediately prior to the Maturity Date~~July 1, 2022). If the Company does not timely elect a ~~Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date~~settlement method, the Company ~~shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall~~ will be deemed to have elected ~~Combination Settlement~~ physical settlement in respect of its ~~Conversion Obligation on such Conversion Date~~conversion obligation, ~~and~~ as described below. If the ~~Specified Dollar Amount per $1,000 principal~~ Company elects combination settlement, but it does not timely notify converting Holders of the specified dollar amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities~~. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal~~ , such specified dollar amount ~~of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall~~ will be deemed to be $1,000~~. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "~~. Settlement ~~Amount") shall~~ amounts will be computed as follows: (Ai) if the Company elects (or is deemed to ~~satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~have elected) physical settlement, the Company ~~shall deliver~~ will deliver, through its transfer agent for its Common Shares, to ~~the~~ each converting Holder ~~in respect~~ a number of ~~each $1,000~~ Common Shares equal to (1) (A) the aggregate principal amount of Securities ~~being converted a number of shares of Common Stock equal~~ to be converted, divided by (B) $1,000 multiplied by (2) the Conversion Rate in effect on the relevant Conversion Date (provided that the Company shall deliver cash in lieu of ~~any~~ fractional shares as described in ~~Section 10.03~~clause (ii) below or at its election, round up the number of Common Shares deliverable to the next higher whole number of Common Shares); (Bii) if the Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement~~cash settlement, ~~the Company shall~~ it will pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the ~~Daily Conversion Values~~ daily conversion values for each of the ten (10) consecutive Trading ~~Day~~ Days during the related ~~Observation Period~~observation period; and (Ciii) if the Company elects ~~(or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement~~combination settlement, ~~the Company shall~~ it will pay or ~~deliver to the converting Holder~~deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Securities being ~~converted,~~ converted a ~~Settlement Amount~~ “settlement amount” equal to the sum of the ~~Daily Settlement Amounts~~ daily settlement amounts for each of the ten (10) consecutive Trading ~~Day~~ Days during the related ~~Observation Period~~observation period. (vi) ~~Notwithstanding anything~~ The “daily settlement amount,” for each of the ten (10) consecutive Trading Days during the observation period, shall consist of: (a) cash equal to the ~~contrary in this Section 10.02 and subject to Section 10.14,~~ lesser of (i) the ~~Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000~~ maximum cash amount per $1,000 principal amount of ~~Securities. In~~ Securities to be received upon conversion as specified in the ~~event any Holder(s~~notice specifying the Company’s chosen settlement method (the “specified dollar amount”), if any, divided by ten (10) ~~of Purchaser Securities exercises its right to convert all or any portion of~~ (such ~~Purchaser Securities~~quotient, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable“daily measurement value”) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the ~~third Business Day immediately following~~ daily conversion value; and (b) if the ~~last Trading Day~~ daily conversion value exceeds the daily measurement value, a number of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred shares equal to ~~in the second proviso below; provided, however, that~~ (i) to the ~~extent all or a portion of~~ difference between the ~~Conversion Obligation is paid in cash~~daily conversion value and the daily measurement value, ~~such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and~~ divided by (ii) to the ~~extent all or a portion of the Conversion Obligation is to be paid in shares~~ Daily VWAP of Common ~~Stock,~~ Shares for such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion ObligationTrading Day. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (g) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (h) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Indenture (Platinum Group Metals LTD)

Conversion Procedure and Payment Upon Conversion. (aA) ~~Subject~~ To convert a Note a Holder must: (i) complete and manually sign the Conversion Notice, with appropriate signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to ~~this~~ the Conversion Agent; (ii) surrender the Note to the Conversion Agent; (iii) if required, furnish appropriate endorsements and transfer documents; (iv) if required, pay any transfer or similar taxes; and (v) if required by Section ~~10.02~~ 9.02(C), pay funds equal to interest payable on the next Interest Payment Date. If a Holder holds a beneficial interest in a Note issued in the form of a Global Note, to convert such Note, the Holder must comply with clauses (iv) and ~~Section 10.11, upon~~ (v) above and the Depositary’s procedures for converting such beneficial interest. Upon conversion of ~~any Security~~a Note, the ~~Company~~ Issuer shall pay or deliver, as the case may be, to through the ~~converting Holder~~Conversion Agent, ~~in respect of each $1,000 principal amount of Securities being converted~~Common Shares ( “Physical Settlement”), cash ("“Cash Settlement"”), ~~Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement")~~ or a combination ~~of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03~~ thereof ("“Combination Settlement~~"), at its election,~~ ”) as set forth below in this Section ~~10.02. (i~~9.02(A) ~~All conversions for which~~ and subject to Section 9.03. The Issuer shall inform converting Holders in writing through the relevant Conversion Date occurs on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions Trustee of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") its election of the relevant Settlement Method (the “Settlement Election Notice”) in respect of such Conversion Date (or such period, as the case may be). If the Issuer elects Combination Settlement, such Settlement Election Notice shall specify the amount to be satisfied in cash either as a percent of the conversion obligation (the “Cash Percentage”) or as a fixed dollar amount per $1,000 principal amount of Notes (the “Specified Cash Amount”). The Issuer shall provide a Settlement Election Notice with respect to Notes converted during the period beginning on, and including, the ~~Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of~~ twenty-second (22nd) Business ~~on the Trading~~ Day immediately ~~following~~ preceding the ~~relevant Conversion~~ Maturity Date ~~to which such Settlement Notice applies (or~~and ending on, in and including the ~~case of any conversions occurring on or after the 22nd Scheduled Trading~~ Business Day immediately ~~prior to~~ preceding the Maturity Date, no later than the ~~22nd Scheduled Trading~~ twenty-third (23rd) Business Day immediately preceding the Maturity Date; and in all other cases, no later than two (2) Business Days following the applicable Conversion Date. If the Issuer does not provide a Settlement Election Notice prior to the ~~Maturity Date). If the Company does not elect a Settlement Method prior to the~~ applicable deadline ~~set forth~~ specified in the immediately preceding ~~sentence for a Conversion Date~~sentence, the ~~Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall~~ Issuer will be deemed to have elected ~~Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000~~Physical Settlement. ~~Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of~~ If Issuer elects Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not ~~indicate a~~ provide the Cash Percentage or Specified ~~Dollar~~ Cash Amount ~~per $1,000 principal amount~~ prior to the applicable deadline specified in the first sentence of ~~Securities in such Settlement Notice~~this paragraph, the Specified ~~Dollar~~ Cash Amount ~~per $1,000 principal amount of Securities shall~~ will be deemed to be $~~1,000.~~ 1,000 for such Conversion Date. The Issuer will treat all converting Holders with the same Conversion Date in the same manner. Except for any conversion occurring on or after the twenty-second (iv22nd) Business Day immediately preceding the Maturity Date, the Issuer will not have any obligation to settle conversions occurring on different Conversion Dates in the same manner. If the Issuer elects Physical Settlement, such settlement shall occur within three Business Days of the relevant Conversion Date. If the Issuer elects Cash Settlement or Combination Settlement, such settlement shall occur on the third Business Day immediately following the final Trading Day of the applicable Cash Settlement Averaging Period, except in connection with Make-Whole Fundamental Changes described in clause (d) of the definition of Change in Control, where the consideration for Common Shares is comprised entirely of cash as described in Section 9.15. The ~~cash, Common Stock or combination~~ amount of cash and number of Common ~~Stock in respect of any~~ Shares, as the case may be, due upon conversion of ~~Securities (~~the ~~"Settlement Amount")~~ Notes shall be ~~computed~~ determined as follows: (Ai) if If the ~~Company~~ Issuer elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the ~~Company~~ Issuer shall deliver to ~~the~~ each converting Holder ~~in respect~~ a number of ~~each $1,000~~ Common Shares equal to (i) (A) the aggregate principal amount of ~~Securities being converted a number of shares of Common Stock equal to~~ Notes converted, divided by (B) $1,000 multiplied by (ii) the Conversion Rate in effect on the relevant Conversion Date (provided that the ~~Company~~ Issuer shall deliver cash in lieu of ~~any~~ fractional shares as described in Section ~~10.03~~9.03);. (Bii) if If the ~~Company~~ Issuer elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Company~~ Issuer shall pay to ~~the~~ each converting ~~Holder in respect of~~ Holder, for each $1,000 principal amount of ~~Securities being converted~~ Notes so converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the twenty (20) consecutive Trading ~~Day during~~ Days in the ~~related Observation~~ relevant Cash Settlement Averaging Period~~; and~~. (Ciii) if If the ~~Company~~ Issuer elects ~~(or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Company~~ Issuer shall ~~pay or~~ deliver to ~~the~~ each converting Holder, ~~as the case may be, in respect of~~ for each $1,000 principal amount of ~~Securities being~~ Notes so converted, ~~a Settlement Amount~~ cash and Common Shares equal to the sum of the Daily Settlement Amounts for each of the twenty (20) consecutive Trading ~~Day during the related Observation Period. (v) Notwithstanding anything to the contrary~~ Days in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant ~~Observation Period for purposes of determining the Daily~~ Cash Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion DateAveraging Period. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Company~~ Issuer promptly following the last day of the ~~Observation~~ applicable Cash Settlement Averaging Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash ~~payable~~ deliverable in lieu of ~~delivering any~~ fractional shares ~~of Common Stock, and in any event within one~~ (~~1) Business Day following the last day of the Observation Period~~if any), the ~~Company~~ Issuer shall notify the Trustee and the Conversion Agent ~~(if other than the Trustee)~~ of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash ~~payable~~ deliverable in lieu of ~~delivering~~ fractional shares ~~of Common Stock~~(if any). The Trustee and the Conversion Agent ~~(if other than the Trustee)~~ shall have no responsibility for any such determination. (bB) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a A Holder receiving Common ~~Stock~~ Shares upon conversion shall not be entitled to any rights ~~relating to such~~ as a holder of Common ~~Stock~~Shares, including, among other things, the right to vote and receive dividends and notices of shareholder meetings~~. The Company will determine~~ , until the Close of Business on the Conversion Date ~~and~~ or the Close of Business on the last Trading Day of the relevant ~~Observation~~ Cash Settlement Averaging Period. On and after the Conversion Date with respect to a conversion of a Note pursuant hereto, ~~as applicable, in accordance with the requirements set forth herein and notify the Trustee~~ all rights of the ~~same. (c) In the case~~ Holder of ~~any conversion of Securities~~ such Note shall terminate, other than the ~~Purchaser Securities,~~ right to receive the ~~Company shall pay~~ consideration payable or ~~deliver~~deliverable, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any upon conversion of ~~Purchaser Securities, the Company shall pay or deliver,~~ such Note as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the second proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company's Conversion Obligationprovided herein. (dC) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except to the extent otherwise Except as provided in the Notes or in this ~~Section 10.02(e)~~Article IX, no payment or adjustment will be made for dividends on any Common Shares issued on or prior to conversion or for accrued interest on a converted ~~Security~~Note, and such accrued interest, if any, ~~will~~ shall be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. ~~The Company's settlement~~ Upon conversion of the full Conversion Obligation with respect to such a Security shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. (f) Upon a conversion of Securities Notes into a combination of cash and Common ~~Stock~~Shares, accrued and unpaid interest ~~will~~ (if any) shall be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a ~~Security~~ Note for conversion after the Close of Business on ~~the~~ any Interest Record Date ~~for the payment of an installment of interest but~~ and prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such ~~Security~~ Note on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such ~~Security~~ Note at the Close of Business on such Interest Record Date; provided, however, that such ~~Security~~Note, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the ~~Company~~ Issuer of an the full amount equal to the ~~full amount of~~ interest payable on such Interest Payment Date on the ~~Security~~ portion so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a ~~Security~~ Note surrendered for conversion shall not be required with respect to a ~~Security~~ Note that (i) is surrendered for conversion after the Close of Business on the Interest Record Date immediately preceding the Maturity ~~Date,~~ Date or (ii) is surrendered for conversion after the Close of Business on a an Interest Record Date for the payment of an installment of interest and on or ~~prior to~~ before the Open of Business on the related Interest Payment Date, where, pursuant to Section ~~3.01~~3.02, the ~~Company~~ Issuer has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Interest Record Date ~~but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest~~ and on or ~~prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to~~ before such Interest Payment Date; provided further that, if the Issuer shall have, prior to the Conversion Date with respect to a Note, defaulted in a payment of interest on such Note, then in no event shall the Holder of such Note who surrenders such Note for conversion be required to pay such Defaulted Interest or the interest that shall have accrued on such Defaulted Interest pursuant to Section 2.07 of this First Supplement Indenture and Section 3.7 of the Original Indenture or otherwise (it being understood that nothing in this Section 9.02(C) shall affect the Issuer’s obligations under Section 2.07 of this First Supplement Indenture and Section 3.7 of the Original Indenture). (gD) If a Holder converts more than one ~~Security~~ Note at the same time, the ~~Conversion Obligation with respect to~~ number of full Common Shares issuable upon such ~~Securities~~ conversion, if any, shall be based on the total principal amount of all ~~Securities so~~ Notes converted. (hE) Upon surrender of a ~~Security~~ Note that is converted in part, the Trustee shall authenticate for the Holder a new ~~Security~~ Note equal in principal amount to the unconverted portion of the ~~Security~~ Note surrendered.

Appears in 1 contract

Samples: Supplemental Indenture (Interoil Corp)

Conversion Procedure and Payment Upon Conversion. 9.4.1 Not later than three (a3) ~~Subject to this Section 10.02 and Section 10.11, upon conversion of~~ Trading Days after any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("Cash Settlement"), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Physical Settlement") or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("Combination Settlement"), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date ~~occurs on or after~~ (the ~~22nd Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i~~“Delivery Date”), the Company ~~shall use the same Settlement Method~~ or its designated transfer agent for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "Settlement Notice") of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the 22nd Scheduled Trading Day immediately prior to the Maturity Date, no later than the 22nd Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "Settlement Amount") shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything to the contrary in this Section 10.02 and subject to Section 10.14, the Company hereby elects to satisfy its Conversion Obligation with respect to any conversion of Purchaser Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. In the event any Holder(s) of Purchaser Securities exercises its right to convert all or any portion of such Purchaser Securities, the relevant Observation Period for purposes of determining the Daily Settlement Amount shall be the 20 consecutive Trading Day period beginning on, and including, the 20th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion Date. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or a Combination Settlement of the Purchaser Securities) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement other than in respect to the Purchaser Securities). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Periodcommon stock, as applicable, ~~in accordance with~~ shall issue and deliver to the ~~requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the Purchaser Securities, the Company shall pay or deliver,~~ Holder as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of Purchaser Securities, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the ~~written notice referred to~~ Conversion Notice, registered in the ~~second proviso below; provided, however, that (i) to the extent all or a portion~~ name of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all Holder or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the Purchaser Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the Purchaser Securities subject to conversion. If any shares of Common Stock are due to converting Holdersits designee, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full number of shares of Common Stock to which the Holder is entitled, free from any restrictive legend. If in the case of any Conversion Notice such shares are not delivered to or as directed by the applicable Holder by the Delivery Date, the Holder shall be entitled by written notice to the Company at any time on or before its receipt of such shares, to rescind such conversion, in ~~satisfaction~~ which event the Company shall immediately return its Securities tendered for conversion, whereupon the Company and the Holder shall each be restored to their respective positions immediately prior to the delivery of such notice of revocation, except that any amounts described in this Section 9.4 shall be payable through the date notice of rescission is given to the Company. The Company understands that a delay in the delivery of the ~~Company's Conversion Obligation. (d) Solely with respect~~ shares of Common Stock upon conversion of the Securities beyond the Delivery Date could result in economic loss to ~~Purchaser Securities, accrued and unpaid interest, if any, shall be paid~~ the Holder. If the Company fails to deliver to the Holder ~~upon conversion. Upon~~ such shares by the ~~Company's settlement of the full Conversion Obligation with respect to a Purchaser Security~~Delivery Date, the Company shall pay to such Holder, in cash, an amount per Trading Day for each Trading Day until such shares are delivered, together with interest on such amount at a rate of 15% per annum, accruing until such amount and any accrued interest thereon is paid in full, equal to the greater of (A) (i) 1% of the aggregate principal amount of the Securities requested to be converted for each of the first five (5) Trading Days after the Delivery Date and (ii) 2% of the aggregate principal amount of the Securities requested to be converted for each Trading Day thereafter and (B) $2,000 per day (which amount shall be paid as liquidated damages and not as a penalty). Nothing herein shall limit a Holder’s right to pursue actual damages for the Company’s failure to deliver certificates representing shares of Common Stock upon conversion within the period specified herein and such ~~Purchaser Security~~ Holder shall have the right to pursue all remedies available to it at law or in equity (including, without limitation, a decree of specific performance and/or injunctive relief). Notwithstanding anything to the contrary contained herein, the Holder shall be entitled to withdraw a Conversion Notice, and upon such withdrawal the Company shall only be obligated to pay the liquidated damages accrued in accordance with this Section through the date the Conversion Notice is withdrawn. In addition to any other rights available to the Holder, if the Company fails to cause its transfer agent for its common stock to deliver the shares of Common Stock issuable upon conversion of this Note on or before the Delivery Date, and ~~unpaid interest~~if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the shares of Common Stock issuable upon conversion of the Securities which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of shares of Common Stock issuable upon conversion of the Securities that the Company was required to deliver to the Holder in connection with such conversion times (B) the price at which the sell order giving rise to such purchase obligation was executed, toand (2) at the option of the Holder, ~~but~~ either reinstate the portion of the Securities and equivalent number of shares of Common Stock for which such conversion was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its conversion and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (1) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the ~~relevant settlement date~~ Company’s failure to timely deliver shares of Common Stock upon conversion of the Securities as required pursuant to the terms hereof. 9.4.2 If a Security is tendered for conversion or upon a mandatory conversion pursuant to Section 9.3 in accordance with this ARTICLE IX, then: (a) the Company shall deliver, through its transfer agent of its common stock, the following to the Holder of such Security: (i) a certificate for, or to the extent permissible, in book entry form through DTC, the number of full shares of Common Stock into which the Securities are converted (the “Conversion Shares”); and (ii) any ~~conversion~~cash payment for fractional shares (the “Cash Payment”). (eb) ~~With~~ the Company shall deliver such Conversion Shares as soon as practicable following the Conversion Date applicable to such conversion, but in no event more than two (2) Business Days after the Conversion Date; and (c) at and after the close of business on the Conversion Date, the person in whose name such certificate representing such Conversion Shares is to be registered shall be treated as a stockholder of record with respect to ~~any Security except a Purchaser Security and except to the extent otherwise provided in this Section 10.02(e), no payment or adjustment will be made for accrued interest on a converted Security~~such Conversion Shares, and ~~accrued interest~~all rights of the Holder of such Security shall terminate, ~~if any, will be deemed~~ other than the right to ~~be paid by~~ receive the consideration ~~paid to the Holder~~ deliverable upon conversion of such Security. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's settlement of the full Conversion Obligation with respect to such a Security ~~shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~as provided herein. ~~(f) Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.~~ 9.4.3 If any Holder surrenders a Security for conversion after the ~~Close~~ close of ~~Business~~ business on the Record Date for the payment of an installment of interest ~~but~~ and prior to the ~~Open of Business on the next~~ related Interest Payment Date, then, notwithstanding such conversion, the ~~full amount of~~ interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the ~~Close~~ close of ~~Business~~ business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. ~~(g)~~ 9.4.4 If a Holder converts more than one Security at the same time, the ~~Conversion Obligation with respect to~~ number of full shares of Common Stock issuable upon such ~~Securities~~ conversion, if any, shall be based on the total principal amount of all Securities so converted. ~~(h)~~ 9.4.5 Upon surrender of a Security that is converted in part, the ~~Trustee~~ Trustee, upon receipt of a Company Order, shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered. 9.4.6 If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

Appears in 1 contract

Samples: Indenture (Genta Inc De/)

Conversion Procedure and Payment Upon Conversion. (a) Subject to this Section 10.02 and Section ~~10.11~~10.11 and the settlement provisions of Section 10.14(c), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Securities being converted, cash ("“Cash Settlement"”), Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Physical Settlement"”) or a combination of cash and Common Stock, together with cash, if applicable, in lieu of delivering any fractional shares of Common Stock in accordance with Section 10.03 ("“Combination Settlement"”), at its election, as set forth in this Section 10.02. (i) All conversions for which the relevant Conversion Date occurs on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date shall be settled using the same Settlement Method. (ii) Except for any conversions described in the immediately preceding clause (i), the Company shall use the same Settlement Method for all conversions of Securities occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or for all conversions in any period), the Company elects to deliver a notice (the "“Settlement Notice"”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders no later than the Close of Business on the Trading Day immediately following the relevant Conversion Date to which such Settlement Notice applies (or, in the case of any conversions occurring on or after the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date, no later than the ~~22nd~~ 27th Scheduled Trading Day immediately prior to the Maturity Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence for a Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to conversions on such Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation on such Conversion Date, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000. Notwithstanding the foregoing, any conversion of Sponsor Securities shall be subject to Section 10.02(a)(v). (iv) The cash, Common Stock or combination of cash and Common Stock in respect of any conversion of Securities (the "“Settlement Amount"”) shall be computed as follows: (A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of any fractional shares as described in Section 10.03); (B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each Trading Day during the related Observation Period; and (C) if the Company elects (or is deemed to have elected pursuant to Section 10.02(a)(iii)) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver to the converting Holder, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each Trading Day during the related Observation Period. (v) Notwithstanding anything herein to the ~~contrary in this Section 10.02 and subject to Section 10.14~~contrary, the Company hereby initially elects to satisfy its Conversion Obligation with respect to any conversion of ~~Purchaser~~ Sponsor Securities by Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Securities. The Company may change its Settlement Method election (and, in the case of Combination Settlement, the Specified Dollar Amount) with respect to any conversion of Sponsor Securities by delivering a notice that specifies the newly elected Settlement Method and, in the case of Combination Settlement, the applicable Specified Dollar Amount (the “Sponsor Settlement Notice”) to the Holders of the Sponsor Securities, and such newly elected Settlement Method (and, in the case of Combination Settlement, the Specified Dollar Amount) shall be effective no earlier than ten (10) Trading Days after the date on which such Sponsor Settlement Notice was received by the Holder. In the event any Holder(s) of ~~Purchaser~~ Sponsor Securities exercises its right to convert all or any portion of such ~~Purchaser~~ Sponsor Securities, such Holder may specify in the Conversion Notice delivered to the Company that the relevant ~~Observation Period~~ observation period for purposes of determining the Daily Settlement ~~Amount~~ Amount, in the case of Combination Settlement, and Daily Conversion Values, in the case of Cash Settlement, with respect to such Sponsor Securities shall be (x) the 20 Observation Period or (y) the 25 consecutive Trading Day period beginning on, and including, the ~~20th~~ 25th Trading Day immediately preceding the applicable Conversion Date and ending on the Trading Day immediately preceding such Conversion ~~Date~~Date (such period, the “Alternative Observation Period”). If such Holder specifies use of the Alternative Observation Period, the Company shall promptly, following the last Trading day of the Observation Period, (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, in each case, based on the Alternative Observation Period and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. If such Holder specifies use of the Observation Period, the Company shall promptly (x) determine the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, in each case, based on the Observation Period and (y) notify the Trustee, the Conversion Agent (if other than the Trustee) and such Holder of Sponsor Securities being so converted of the Daily Settlement Amount or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock. If such Holder fails to specify the observation period in such Conversion Notice, such Holder will be deemed to have elected the Alternative Observation Period. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common Stock, and in any event within one (1) Business Day following the last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Each conversion shall be deemed to have been effected as to any Securities surrendered for conversion at the Close of Business on the applicable Conversion Date; provided, however, that the Person in whose name any shares of the Common Stock shall be issuable upon such conversion shall become the holder of record of such shares as of the Close of Business on such Conversion Date (in the case of Physical Settlement or ~~a Combination Settlement~~ any conversion of Sponsor Securities to which the ~~Purchaser Securities~~Observation Period applies pursuant to Section 10.02(a)) or the last Trading Day of the relevant Observation Period (in the case of Combination Settlement of Securities other than Sponsor Securities and in ~~respect~~ the case of any conversion of Sponsor Securities to which the ~~Purchaser Securities~~Alternative Observation Period applies pursuant to Section 10.02(a)). Prior to such time, a Holder receiving Common Stock upon conversion shall not be entitled to any rights relating to such Common Stock, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. The Company will determine the Conversion Date and the last Trading Day of the relevant Observation Period or Alternative Observation Period, as applicable, in accordance with the requirements set forth herein and notify the Trustee of the same. (c) In the case of any conversion of Securities other than the ~~Purchaser Securities~~Sponsor Securities and in the case of any conversion of Sponsor Securities to which the Observation Period applies pursuant to Section 10.02(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the later of (i) the third Business Day immediately following the relevant Conversion Date and (ii) the third Business Day immediately following the last Trading Day of the relevant Observation Period, as applicable. In the case of any conversion of ~~Purchaser Securities~~Sponsor Securities to which the Alternative Observation Period applies pursuant to Section 10.02(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date unless otherwise specified in the written notice referred to in the ~~second~~ proviso below; provided, however, that (i) to the extent all or a portion of the Conversion Obligation is paid in cash, such cash shall not be due until the earlier of (A) the 30th Business Day immediately following the relevant Conversion Date and (B) the Maturity Date, and (ii) to the extent all or a portion of the Conversion Obligation is to be paid in shares of Common Stock, such shares shall be delivered on the day specified in a written notice from the beneficial owner(s) of the ~~Purchaser~~ Sponsor Securities being converted that is delivered to the Company on or prior to the second Business Day immediately following the relevant Conversion Date, which delivery date (in respect of such shares of Common Stock) shall be no earlier than the third Business Day immediately following the relevant Conversion Date and be no later than the seventh Business Day immediately following the relevant Conversion Date (it being understood that if no such notice is delivered to the Company, then the Company shall deliver such shares on the third Business Day immediately following the relevant Conversion Date). Such written notice shall include a certification therein that the beneficial owners delivering such written notice are holders that hold beneficial interests in the ~~Purchaser~~ Sponsor Securities subject to conversion. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver or cause to be delivered to such Holder, or such Holder's nominee(s) or transferee(s), certificates or a book-entry transfer through the Depository for the full ~~number of shares~~ amount of Common Stock to which such Holder shall be entitled in satisfaction of the Company's ’s Conversion Obligation. (d) Solely with respect to Purchaser Securities, accrued and unpaid interest, if any, shall be paid to the Holder upon conversion. Upon the Company's settlement of the full Conversion Obligation with respect to a Purchaser Security, the Company shall pay the principal amount of such Purchaser Security and accrued and unpaid interest, if any, to, but not including, the relevant settlement date of any conversion. (e) With respect to any Security except a Purchaser Security and except Except to the extent otherwise provided in this Section ~~10.02(e~~10.02(d), no payment or adjustment will be made for accrued interest on a converted Security, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Holder upon ~~conversion of such Security~~conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Company's ’s settlement of the full Conversion Obligation ~~with respect to such a Security~~ shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date~~. (f)~~ . Upon a conversion of Securities into a combination of cash and Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the Close of Business on the Record Date for the payment of an installment of interest but prior to the Open of Business on the next Interest Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the Close of Business on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required with respect to a Security that (i) is surrendered for conversion after the Close of Business on the Record Date immediately preceding the Maturity Date, or (ii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 3.01, the Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date that is after such Record Date but on or prior to such Interest Payment Date or (iii) is surrendered for conversion after the Close of Business on a Record Date for the payment of an installment of interest and on or prior to the Open of Business on the related Interest Payment Date, where, pursuant to Section 13.03, the Company has specified a Redemption Date that is after such Record Date but on or prior to such Interest Payment Date. (ge) If a Holder converts more than one Security at the same time, the Conversion Obligation with respect to such Securities shall be based on the total principal amount of all Securities so converted. (hf) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

Appears in 1 contract

Samples: Investment Agreement (NortonLifeLock Inc.)

Common use of Conversion Procedure and Payment Upon Conversion Clause in Contracts