Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02. (i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option. (iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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. (d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. (i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Repligen Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteClass A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15May 1, 2028 or during a Redemption Period 2024 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15May 1, 20282024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates. By written notice to the Holders, the Company may, prior to May 1, 2024, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) for which the relevant Conversion Date occurs on or after September 15May 1, 20282024, no later than the close of business on the Business Day immediately preceding May 1, 2024), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15May 1, 20282024, no later than the close of business on the Trading Business Day immediately preceding September 15May 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2024). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Cash Percentage per Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes at or above being converted a number of shares of Class A Common Stock equal to the specified minimum Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after May 1, 2024, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 Class A Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Class A Common Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow in the fifth sentence of this paragraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Class A Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Class A Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Alteryx, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or and, if applicable, deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such NotePeriod, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028 or during a Redemption Period 2028, shall be settled using the same forms and amounts of consideration.
(ii) Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028, the Company shall use the same forms and amounts of consideration Cash Percentage for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Cash Percentage with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion amount of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Company shall inform converting Holders through the Trustee and of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xi) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption Notice, or (yii) on or after September 15June 1, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028later
(ii) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon For any conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and Amounts, the Daily Conversion Values and the Settlement Amount shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion ValuesValues and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Patrick Industries Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.028.02, Section 14.03(b8.03(b) and Section 14.07(a8.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 8.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 8.02 (“Combination Settlement”), at its election, as set forth in this Section 8.02.
(i) All conversions occurring on or after June 15, 2020 shall be settled using the same Settlement Method.
(ii) With respect to conversions occurring prior to June 15, 2020, the Company shall use the same Settlement Method for all conversions 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 the Company elects a Settlement Method, the Company shall inform Holders so converting through the Trustee of the Settlement Method it has elected (including the Specified Dollar Amount if the Company elects Combination Settlement) no later than the close of business on the second Business Trading Day immediately following the last Trading Day related Conversion Date (or in the case of any conversion occurring on or after June 15, 2020, no later than June 15, 2020). If the Company does not timely elect a Settlement Method for a conversion, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company elects Combination Settlement, but does not timely notify converting Holders of the relevant Specified Dollar Amount, such Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company 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 a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the applicable Conversion Rate in effect;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02Period.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e8.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 8 on the Conversion Date for such conversion. No Holder may surrender Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice in accordance with Section 15.039.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of Settlement Amount to such Holder no later than the third Scheduled Trading Day immediately following the relevant Conversion Obligation on Date, if the second Business Company elects Physical Settlement, or no later than the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, if the Company shall issue or cause to be issued, and deliver elects any other Settlement Method (subject to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number provisions of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion ObligationSection 8.03(b) and Section 8.07(a)).
(d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowunless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates and such Holder was the Holder of record on such Regular Record Date. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, interest to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, interest to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will shall be deemed to be paid first out of the any cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following if such Notes are converted after the close of business on the Regular Record Date immediately preceding the Maturity Date and before close of business on the second Scheduled Trading Day immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted AmountsInterest, if any Defaulted Amounts Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (if the Company elects Physical Settlement) or the last Trading Day of the relevant applicable Observation PeriodPeriod (if the Company elects Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Second Supplemental Indenture (GT Advanced Technologies Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or (and deliver, as the case may be, if applicable) to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”) or a “Settlement Amount” equal to the sum combination of the Daily Settlement Amounts for each cash and shares of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15the 25th Scheduled Trading Day immediately preceding the Maturity Date, 2028 or during a Redemption Period shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028the 25th Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates. The Company may, at any time prior to the 25th Scheduled Trading Day immediately preceding the Maturity Date, by written notice to Holders, the Trustee and the Conversion Agent, irrevocably elect a settlement method, irrevocably eliminate a Settlement Method or irrevocably elect a Specified Dollar Amount of at least $1,000 (or a minimum Specified Dollar Amount of at least $1,000) to be applicable to Combination Settlements.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and Company shall send such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and before the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15, 2028the 25th Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the 25th Scheduled Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”Maturity Date). If With respect to any conversion, if the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, then the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period Settlement and the Company shall be deemed to have elected Combination Settlement with respect to settle, such conversion and the Specified Dollar Amount per $1,000 principal amount of Notes will be equal to $1,000. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in respect such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the principal portion of contrary herein, if the converted Company calls any Notes for redemption pursuant to Article 15 and delivering the related Redemption Date is on or after the 25th Scheduled Trading Day immediately preceding the Maturity Date, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be set forth in such Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after the 25th Scheduled Trading Day immediately preceding the Maturity Date.
(iv) The cash, and if applicable, shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), ) shall be computed as follows:
(A) if the Trustee and the Conversion Agent (if other than the Trustee)Company elects Cash Settlement, the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent shall pay to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive VWAP Trading Days during the related Conversion Reference Period; and
(B) if the Company elects (or is deemed to have elected) Combination Settlement, including the Company shall pay (at the Company’s optionand deliver, if applicable) a specified minimum Cash Percentage per in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the related Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionReference Period.
(ivv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes as set forth in Section 13.02(d) and Section 13.02(e) and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section 13.02(b)(3), (4) and (5). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b13.03(b) and Section 14.07(a13.07(a), the Company shall pay or (and deliver, as the case may be, if applicable) the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Conversion Reference Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer of such shares of Common Stock 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.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Physical Holder of the Note so surrendered a new Physical Note or Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Physical Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Physical Notes issued upon such conversion being different from the name of the Holder of the old Physical Notes surrendered for such conversion.
(e) If a Holder submits a Note any of its Notes for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock issued upon such conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open opening of business on the corresponding Interest Payment DateDate to which that Regular Record Date relates, Holders of such Notes as of the close of business on such the Regular Record Date will receive receive, on the corresponding Interest Payment Date (or, at the Company’s election, sooner), the full amount of interest payable on such Notes on the corresponding such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any that are converted with a Conversion Date occurring after a Regular Record Date bur prior to the open of business on the immediately following next Interest Payment Date Date, upon surrender for conversion, must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the next succeeding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record DateNotes.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record with respect to such shares of Common Stock as of the close of business on the last VWAP Trading Day of the relevant Observation Conversion Reference Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last VWAP Trading Day of the relevant Observation Conversion Reference Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Conversion Reference Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Burlington Stores, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs (x) on or after September 15March 1, 2028 2025 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15March 1, 20282025), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15March 1, 20282025, no later than the close of business on the Scheduled Trading Day immediately preceding September 15March 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2025). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in respect such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02shall be deemed to be $1,000. By notice to Holders (the “Irrevocable Election Notice”)Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15March 1, 20282025, at its option option, irrevocably elect to settle satisfy its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent with respect to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) Notes through Combination Settlement with a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per of $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to for all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionnotice.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (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 Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any ay Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed converted and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Livongo Health, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September November 15, 2028 or during a Redemption Period 2036 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period the period from, and any conversions for which the relevant Conversion Date occurs on or after September including, November 15, 20282036 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September November 15, 20282036 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Scheduled Trading Day immediately preceding September November 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2036). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for Settlement or Physical Settlement with respect to such conversion Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the sum of the Daily Conversion Rate Fractions for each of the 50 consecutive Trading Days during the related Observation Period;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holderssum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period.
(v) For purposes of the formula used in determining the Daily Conversion Rate Fractions, the Trustee Conversion Rate and any Settlement Amount during the Conversion Agent (if other than the Trusteerelevant Observation Period in accordance with this Section 14.02(a), the Company Base Conversion Price shall either post its irrevocable election on its website or disclose not be adjusted for any increase to the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Base Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) Rate with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including Notes converted in connection with a Make-Whole Fundamental Change pursuant to Section 10.01(k). However14.03, but shall be adjusted for any other adjustment to the Company may nonetheless choose Base Conversion Rate pursuant to execute such an amendment at its optionSection 14.04.
(ivvi) The Daily Settlement AmountsConversion Rate Fractions, the Daily Net 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 AmountsConversion Rate Fractions, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement AmountsConversion Rate Fractions, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values (and the sum of such Daily Conversion Rate Fractions, Daily Settlement Amounts or Daily Conversion Values), as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockStock for each conversion of Notes. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement; provided, if the relevant Conversion Date is after the Regular Record Date immediately preceding the Maturity Date, such settlement shall occur on the Maturity Date, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestinterest (including any Deferred Interest or Compounded Interest during an Extension Period existing at the time of such conversion), if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note; or (4) to the extent of any Deferred Interest or Compounded Interest, if any Deferred Interest or Compounded Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has (x) elected Physical Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Conversion Rate Fractions for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash or (y) elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Microchip Technology Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 14.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holdercash (“Cash Settlement”), in respect shares of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Combination Settlement”), at the Company’s election, as the case may be, as described below.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15, 2028 or during a Redemption Period 2021, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after Settlement Method. Prior to September 15, 20282021, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in . If the case of any conversions occurring (x) during Company elects a Redemption Period or (y) on or after September 15, 2028)Settlement Method, the Company elects shall inform converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to settle all or a portion of its Conversion Obligation in excess send such notification, of the principal portion of the Notes being converted in cash, the Company will deliver a notice Settlement Method it has selected (the “Cash Percentage Settlement Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 20282021, no later than the close of business on the Trading Business Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)2021. If the Company does not make such an election at or so elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall will be deemed to have elected the Default Settlement Method (and such failure to settle, affirmatively elect a Settlement Method will not constitute a Default or an Event of Default). If the Company shall settleelects Combination Settlement, its Conversion Obligation by paying cash in respect but does not concurrently notify converting Holders of the Specified Dollar Amount per $1,000 principal portion amount of the converted Notes Notes, such Specified Dollar Amount will be deemed to be $1,000.
(ii) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), ) shall be computed as follows:
(A) If the Trustee and the Conversion Agent (if other than the Trustee)Company elects Physical Settlement, the Company may, prior will deliver to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation converting holdings in excess respect of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at notes being converted a number of shares of the Company’s optionCommon Stock equal to the Conversion Rate;
(B) a specified minimum If the Company elects Cash Percentage per Settlement, the Company will pay to converting Holders in respect of each $1,000 principal amount of notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days in the relevant Observation Period; and
(C) If the Company elects (or is deemed to have elected) Combination Settlement, the Company will pay or deliver, as the case may be, to converting Holders in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same 40 consecutive Trading Days in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionObservation Period.
(iviii) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stockshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and, if required, pay all transfer and similar taxes, if any, as provided in Sections 13.02(d) or (e), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes, if any, and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.02. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) Subject to Sections 13.03 and Section 14.07(a)13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if Physical Settlement applies, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided that, for any Conversion Date on or after March 1, 2022 for which Physical Settlement is applicable, settlement will occur on the Maturity Date. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14XIII.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of the Company’s Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive receive, on or before the next Interest Payment Date, the full amount of interest payable on such Notes on the corresponding such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record Notes on the Regular Record Date immediately preceding the Maturity Date, any Date and the Fundamental Change Repurchase Date or Redemption Date, described in each case, as described above, shall (1) and (2) of this paragraph will receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash Date, regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, subject to Sections 13.04(c) and 13.04(e). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on on, in the case of Combination Settlement, the Daily VWAP on the last Last Trading Day of the relevant applicable Observation Period, or, in the case of Physical Settlement, based on the daily VWAP on the relevant Conversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof thereof, shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period Period, and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock Ordinary Share in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after February 15, 2028 or during a Redemption Period 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after a Redemption Period Notice Date but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after September February 15, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) (A) If, in respect of any Conversion Date (or in subject to the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028below proviso), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or Date, the Company, through written notice to the Trustee, shall deliver such period, as the case may be) Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, Date; provided that in the case of any conversions occurring (x) during a of Notes called (or deemed called) for Redemption Periodfor which the relevant Conversion Date occurs on or after the relevant Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, the Company shall do so in such the related Redemption Notice, Notice or (y) on or after September February 15, 20282025, no later than the close of business on the Trading Day immediately preceding September February 15, 2028) 2025 (in each case, the “Cash Percentage Settlement Method Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000 (such settlement method, the “Default Settlement Method” initially elected by the Company). Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will shall be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion$1,000. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver failure to or upon the written order of the Holder of the Note so surrendered timely elect a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder Settlement Method shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement constitute a Default or Event of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversionDefault under this Indenture.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Wix.com Ltd.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal (x) cash up to the sum aggregate principal amount of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share Notes being converted and (y) either cash or shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in accordance with subsection (k) respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of the Notes being converted, as set forth in this Section 14.0214.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15June 1, 2028 2029, and all conversions of Notes called for redemption (or deemed called for redemption) for which the relevant Conversion Date occurs during a Redemption Period Period, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Notes called for redemption (or deemed called for redemption) for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 20282029, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates. In addition, if the Company calls any Notes for redemption (or are deemed to call notes for Redemption) pursuant to Article 16, and the related Redemption Date is on or after June 1, 2029, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that apply to all conversions with a Conversion Date that occurs on or after June 1, 2029.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) for which the relevant Conversion Date occurs during a Redemption Period Period, or (y) for which the relevant Conversion Date occurs on or after September 15June 1, 20282029), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver shall provide a notice (the “Cash Percentage Settlement Notice”) to Holders of such election in respect of such Conversion Date (or such period, as the case may be) ), and the Company shall deliver such Settlement Notice to converting HoldersHolders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee) of such election, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Redemption Period, in such the applicable Notice of Redemption Notice, or (y) on or after September 15June 1, 20282029, no later than the close of business on the Trading Business Day immediately preceding September 15June 1, 20282029) (in each case, the “Cash Percentage Settlement Method Election DeadlineDate”), and the Company . Such Settlement Notice shall indicate in such Cash Percentage Notice the percentage of the consideration due each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the Notes being converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the Company’s Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere converted.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in this Section 14.02. By notice to Holders respect of any conversion of Notes (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent (if other than the Trustee), ) shall be computed as follows: the Company mayshall pay or deliver, prior to September 15as the case may be, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common StockStock or pursuant to dissenter rights. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documentsdocuments in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowin this Section 14.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, Notes accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or if the Company does not deliver a Cash Percentage Settlement Notice at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Jetblue Airways Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b14.07(a) and Section 14.07(a14.14(b), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting HolderHolder no later than two (2) Business Days following the applicable conversion of the Notes, (A) in respect of each $1,000 of principal amount of and accrued and unpaid interest on the Notes being converted, a “Settlement Amount” equal to at the sum election of the Daily Settlement Amounts for each Company, (x) cash (“Cash Settlement”), (y) shares of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0214.02 (“Physical Settlement”) or (z) a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), as set forth in this Section 14.02 and (B) in connection with any conversion pursuant to Section 14.01 that settles on or after the first anniversary of the Closing Date through (but excluding) the third anniversary of the Closing Date, the applicable Interest Make-Whole Amount.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the The Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028)Date, the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)Date. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or Combination Settlement during such period or with respect to such conversion and the Company shall be deemed to have elected to settlePhysical Settlement. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the Company relevant Settlement Notice shall settle, its Conversion Obligation by paying cash in respect of indicate the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set and accrued and unpaid interest thereon. If the Cash Percentage 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 Notes at or above the specified minimum Cash Percentage set forth and accrued and unpaid interest thereon in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability and accrued and unpaid interest thereon shall be deemed to continue to set be $1,000. Notwithstanding the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Noticeforegoing, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such irrevocable election will affect any Cash Percentage Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to the provisions described in this Section 14.02.
(iii) The shares of Common Stock and cash the Company shall pay and/or deliver, as the case may be, in respect of any conversion of Notes (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, in respect of each $1,000 of principal and accrued and unpaid interest on the Notes being converted: (1) a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion. For the avoidance of doubt), such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including plus (2) in connection with any conversion pursuant to Section 10.01(k). However14.01 that settles on or after the first anniversary of the Closing Date through (but excluding) the third anniversary of the Closing Date, cash in an amount equal to the applicable Interest Make-Whole Amount;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, in respect of each $1,000 of principal and accrued and unpaid interest on the Notes being converted, the Company shall pay to the converting Holder cash in an amount equal to (1) the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period, plus (2) in connection with any conversion pursuant to Section 14.01 that settles on or after the first anniversary of the Closing Date through (but excluding) the third anniversary of the Closing Date, the applicable Interest Make-Whole Amount; and
(C) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 of principal and accrued and unpaid interest on the Notes being converted, (1) a Settlement Amount equal to execute such the sum of the Daily Settlement Amounts for each of the 30 consecutive Trading Days during the related Observation Period, plus (2) in connection with any conversion pursuant to Section 14.01 that settles on or after the first anniversary of the Closing Date through (but excluding) the third anniversary of the Closing Date, cash in an amendment at its optionamount equal to the applicable Interest Make- Whole Amount.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. Notwithstanding anything to the contrary contained herein, to the extent that an indirect holder of a Global Note held indirectly through a participant submits irrevocable instructions to convert any portion of such Note, such Holder shall be deemed for purposes of Regulation SHO to have converted the applicable portion of such Note at the time of delivery of such instructions, regardless of when shares of Common Stock are delivered to such Holder or its participant. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b14.07(a) and Section 14.07(a14.14(b), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. Notwithstanding the foregoing, with respect to the Company’s satisfaction of its Conversion Obligation through Physical Settlement for which the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the settlement shall occur on the Maturity Date. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book- entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued Accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeitedconverted into shares of Common Stock at the Conversion Rate. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if If Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date (in addition to having the value of such interest converted in connection with such conversion) will receive the full amount of interest payable on such Notes in cash on the corresponding such Interest Payment Date notwithstanding the conversion. Therefore, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of for the relevant Observation PeriodConversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (BuzzFeed, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15July 1, 2028 or during a Redemption Period 2018 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which that occur during the relevant Conversion Date occurs during a Redemption Period period from, and any conversions for which including, July 1, 2018 to the relevant Conversion Date occurs close of business on or after September 15, 2028the second Scheduled Trading Day immediately the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesDays.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) July 1, 2018 to the close of business on or after September 15, 2028the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September 15July 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2018). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 30 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after July 1, 2018, the Company shall settle any such conversion on the Maturity Date), or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding October 15, 2018, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Special Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on October 15, 2018 (if and to the Regular Record Date immediately preceding extent Special Interest is payable on the Maturity Date, ) and any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Special Interest Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (ServiceNow, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal (x) cash up to the sum aggregate principal amount of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share Notes being converted and (y) cash or shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in accordance with subsection (k) respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of the Notes being converted, as set forth in this Section 14.0214.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same forms and amounts of consideration, and all conversions for which the relevant Conversion Date occurs on or after December 15, 2028 or during a Redemption Period 2027 shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the close of business on the Business Day before the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September December 15, 20282027, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in any conversion for which the case relevant Conversion Date occurs (A) after the Company’s issuance of any conversions occurring (x) during a Redemption Period Notice and prior to the close of business on the Business Day before the related Redemption Date, or (yB) on or after September December 15, 20282027), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion amount of the Notes being converted in cash, the Company will shall deliver a notice (the “Cash Percentage Settlement Notice”) of such election in respect of such Conversion Date (or such period, as to the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xA) during after the Company’s issuance of a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than Notice and prior to the close of business on the Trading Business Day immediately preceding September before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (B) on or after December 15, 2028) 2027, no later than December 15, 2027 (in each case, the “Cash Percentage Settlement Method Election Deadline”), and the Company . Such Settlement Notice shall indicate in such Cash Percentage Notice the percentage of the consideration due each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the Company shall no longer have the right to elect a Cash Percentage for with respect to such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the Notes being converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the Company’s Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02converted. By notice Prior to Holders close of business on the Business Day immediately preceding December 15, 2027 (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than during a period described in clause (A) in the Trusteefirst parenthetical in the immediately preceding paragraph), the Company may, prior to September 15, 2028, at its option election, inform (an “Irrevocable Election Notice”) Holders of Notes in writing that the Company has irrevocably elect elected to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the through a Cash Percentage specified (in such Irrevocable Election Notice) of 0 percent for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount Notes and such irrevocable election will apply to all conversions of Notes with an ability to continue to set a Conversion Date that is on or after the Cash Percentage per $1,000 principal amount of Notes at or above date the specified minimum Cash Percentage set forth in Company sends such notice; provided, however, that any Irrevocable Election NoticeNotice given during a period described in clause (A) in the first parenthetical in the immediately preceding paragraph will only apply to Notes submitted for conversion subsequent to the applicable Redemption Date. Concurrently with providing the Irrevocable Election Notice to Holders of Notes, the Holders, Company will promptly deliver a copy of the Irrevocable Election Notice to the Trustee and the Conversion Agent (if other than the Trustee), ) and post the Company shall either post its irrevocable election substance of the Irrevocable Election Notice on its the Company’s website or disclose the same in a current report Current Report on Form 8-K (or any successor form) that is filed filed, or furnished, with the Commission. If For the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount avoidance of Notes with an ability to continue to set doubt, notwithstanding the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such foregoing, no Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election Notice will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including Note pursuant to this Section 10.01(k14.03(a)(iii). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The cash and shares of Common Stock, if any, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on such Interest Payment Date for the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any or a Fundamental Change Repurchase Date or Redemption Date, in each case, as described Date referred to above, shall receive the full interest payment due on the Maturity Date or other applicable corresponding Interest Payment Date Date, or Maturity Date, in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or if the Company does not deliver a Cash Percentage Settlement Notice at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Model N, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any New Convertible Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 New Convertible Notes being converted, a “Settlement Amount” number of shares of Common Stock equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteConversion Rate (or Warrants if required by Section 9.12), together with casha cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 159.02 and together with delivery of Warrants pursuant to Section 9.12, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15if applicable, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring in each case on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading second Business Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationDate.
(b) Subject to Section 14.02(e9.02(e), before any Holder of a New Convertible Note shall be entitled to convert a New Convertible Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent Company as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at to the office of the Conversion Agent Company’s Office and state in writing therein the principal amount of New Convertible Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates (or book-entry deposits) for any the shares of Common Stock or Warrants to be delivered upon settlement of the Conversion Obligation to be registered, and (2) surrender such New Convertible Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office . No Notice of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal with respect to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No New Convertible Notes may be surrendered for conversion by a Holder thereof if (i) such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such New Convertible Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0310.10 or (ii) if the Company has delivered a Mandatory Conversion Notice unless the Company has withdrawn such notice and determined not to proceed with the Mandatory Conversion. If more than one New Convertible Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such New Convertible Notes shall be computed on the basis of the aggregate principal amount of the New Convertible Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A New Convertible Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Subject to Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders9.12, the Company shall issue or cause to be issued, and deliver to the Conversion Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary Transfer Agent 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) In case any New Convertible Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the New Convertible Note so surrendered a new New Convertible Note or New Convertible Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered New Convertible Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new New Convertible Notes issued upon such conversion being different from the name of the Holder of the old New Convertible Notes surrendered for such conversion.
(e) If a Holder submits a New Convertible Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock or Warrants upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent Company may refuse to deliver the certificates (or book-entry deposits) representing the shares of Common Stock or Warrants being issued in a name other than the Holder’s name until the Trustee Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any New Convertible Note as provided in this Article 14IX.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee[Reserved].
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued Accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of by the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business Company on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record relevant Conversion Date to the open of business Holder converting its New Convertible Notes on such Conversion Date (unless the immediately following Interest Payment Conversion Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is falls after a Regular Interest Record Date and but on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption , in which case interest accrued will be paid on such Interest Payment Date that is after a to Holders of record of such New Convertible Notes on such Regular Interest Record Date and on or prior the converting Holder (if other than such record holder) will not be entitled to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if separate cash payment for any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record accrued but unpaid interest on the Regular Record Date immediately preceding the Maturity Conversion Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date).
(ji) The Person in whose name the certificate for any the shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of NotesNew Convertible Notes (whether settled in Common Stock or Warrants), such Person shall no longer be a Holder of such New Convertible Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the New Convertible Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock or fractional Warrant issuable upon conversion based on the Daily VWAP Last Reported Sale Price of the Common Stock on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashConversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which occurring during the relevant Conversion Dates occurs on or after period from, and including, September 15, 2028 or during 2014 to the close of business on the Business Day immediately preceding December 20, 2014 and after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which occurring during the relevant Conversion Date occurs during a Redemption Period period from, and any conversions for which the relevant Conversion Date occurs on or after including, September 15, 20282014 to the close of business on the Business Day immediately preceding December 20, 2014 and after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in (A) the case of any conversions occurring (x) during a Redemption Period or (y) on or after period from, and including, September 15, 20282014 to the close of business on the Business Day immediately preceding December 20, 2014 or (B) the period after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after during the period from, and including, September 15, 2028, no later than 2014 to the close of business on the Trading Business Day immediately preceding September December 20, 2014, no later than November 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2014). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder a number of shares of Common Stock equal to the Irrevocable Election Notice using product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage specified (Settlement, the Company shall pay to the converting Holder in such Irrevocable Election Notice) for respect of each $1,000 principal amount of NotesNotes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 30 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all taxes or duties as set forth in this Section 14.02(b) and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Purchase Notice or Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Purchase Notice or Fundamental Change Repurchase Notice Purchase Notice, as applicable, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, Notes into a combination of cash and shares of Common Stock accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted AmountsDecember 15, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.2014;
Appears in 1 contract
Samples: Indenture (Conceptus Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock ADSs in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15June 1, 20282023, no later than the close of business on the Trading Day immediately preceding September 15June 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of Notes shall be equal to US$1,000. Such Settlement Notice shall specify the converted Notes relevant Settlement Method and delivering shares in the case of Common Stock in respect an election of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”)Combination Settlement, the Trustee and relevant Settlement Notice shall indicate the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $Specified Dollar Amount per US$1,000 principal amount of Notes, including (at . If the Company’s option) Company delivers a specified minimum Cash Percentage Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes with an ability to continue to set in such Settlement Notice, the Cash Percentage Specified Dollar Amount per $US$1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionUS$1,000.
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (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 US$1,000 principal amount of Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(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 US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock ADSs are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or (if applicable) 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 ADSs to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such shares ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver Company shall pay the certificates representing ADS Depositary’s fees for the shares issuance of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and ADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; Date (3) or, if the Company has specified such Interest Payment Date is not a Redemption Date that is after a Regular Record Date and on or prior to Business Day, the second Scheduled Trading day Business Day immediately succeeding the corresponding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for Neither the avoidance of doubt, all Holders of record on Trustee nor the Regular Record Date immediately preceding Conversion Agent (if other than the Maturity Date, Trustee) will have any Fundamental Change Repurchase Date duty to determine or Redemption Date, in each case, as described above, shall receive verify determination by the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless Company of whether their Notes any of the conditions to conversion have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Datesatisfied.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered ADSs shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares ADSs that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Baidu, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a (i) cash (“Settlement Amount” equal to the sum Cash Settlement”), (ii) shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or (iii) a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September December 15, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September December 15, 20282020, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September December 15, 20282020, no later than the close of business on the Trading Day immediately preceding September December 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 80 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 80 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP of the Common Stock for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP of the Common Stock for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Universal American Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September March 15, 2028 or during a Redemption Period 2018 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which that occur during the relevant Conversion Date occurs during a Redemption Period period from, and any conversions for which the relevant Conversion Date occurs on or after September including, March 15, 20282018 to the close of business on the second Scheduled Trading Day immediately the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesDays.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September March 15, 20282018 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September March 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2018). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after March 15, 2018, the Company shall settle any such conversion on the Maturity Date), or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Day immediately succeeding the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date and any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Workday, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September August 15, 2028 or during a Redemption Period 2017 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September Prior to August 15, 20282017, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in any conversions of Notes occurring during the period beginning on, and including, August 15, 2017 and ending on, and including, the Scheduled Trading Day immediately preceding the Maturity Date, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company, through the Securities Administrator, shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September August 15, 20282017, no later than the close of business on the Trading Day immediately preceding September August 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2017). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected Physical Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent (if other than the Trustee), ) shall be computed by the Company may, prior as follows:
(A) if the Company elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted an ability amount in cash equal to continue the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 20 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify in writing the Securities Administrator, the Trustee and the Conversion Agent (if other than the Securities Administrator) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share shares of Common Stock. The Securities Administrator, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 TrusteeSecurities Administrator) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent applicable Corporate Trust Office and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee Securities Administrator (andor, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company Paying Agent in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth provided in Section 14.03(b13.03(b) and in Section 14.07(a)13.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 portion of the Company’s Conversion ObligationObligation that consists of shares of Common Stock, and, on or prior to such issuance, the Company shall give the Conversion Agent notice of the number of shares of Common Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent in accordance with the procedures set forth in Section 4.04.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee Securities Administrator shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company Company, the Securities Administrator or Trustee, with payment by the converting Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee Securities Administrator receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14Note.
(g) Upon the conversion of an interest in a Global Note, the Trustee, Securities Administrator or the Custodian at the direction of the TrusteeSecurities Administrator, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee Securities Administrator in writing of any conversion of Notes effected through any Conversion Agent other than the TrusteeSecurities Administrator.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be, in each case solely for the purpose of receiving or participating in any dividend, distribution, issuance, share split or combination, tender or exchange offer or any other event that would lead to a Conversion Rate adjustment as described in Section 13.04. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
(k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock upon conversion to the extent (but only to the extent) that following such receipt such converting Holder would be, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of more than 5.0% of the shares of Common Stock outstanding at such time (the “Limitation”). Any purported delivery of shares of Common Stock upon conversion of Notes shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than the Limitation. If any delivery of shares of Common Stock owed to a Holder upon conversion of Notes is not made, in whole or in part, as a result of the Limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that following such delivery such converting holder would not be the beneficial owner of more than 5.0% of the shares of Common Stock outstanding at such time. The Limitation shall no longer apply following the effective date of any Fundamental Change.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, cause to be delivered to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a “Settlement Amount” number of ADSs equal to the sum Conversion Rate in effect immediately prior to the close of the Daily Settlement Amounts for each of the 20 Trading Days during business on the relevant Observation Period for such NoteConversion Date, together with casha cash payment, if applicable, in lieu of delivering any fractional share ADSs (“Fractional ADSs”) (assuming delivery of Common Stock the maximum number of ADSs due upon conversion that do not represent a fractional ADS) in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading third Business Day immediately following the relevant Conversion Date; provided that, if a Conversion Date occurs (or, in i) following the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day Regular Record Date immediately preceding September 15the Maturity Date, 2028subject to clause (ii) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinebelow, the Company shall no longer cause such delivery (and payment, if applicable) to be made on the Maturity Date or (ii) after the Ordinary Shares have been replaced by the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settleReference Property consisting solely of cash in accordance with Section 14.07, the Company shall settle, its Conversion Obligation by paying cash cause the consideration due in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice conversion to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent be paid to the date of converting Holder on the Irrevocable Election Notice using tenth Business Day immediately following the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the related Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionDate. For the avoidance of doubt, such an irrevocable electionneither the Trustee nor any Agent shall have any responsibility to deliver ADSs upon conversion of any Note to any person or deal with cash payments in relation to conversions, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of except for cash payable payments in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationADS.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice Notice of Conversion to the Conversion Agent as set forth in Agent, the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to Company and the applicable procedures of the ADS Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered and no Notes may be surrendered for conversion by a Holder for conversion thereof if such Xxxxxx Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with Section 15.03. A Notice of Conversion shall be deposited at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. 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 the Conversion Agent or 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 ADSs to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares the ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Ordinary Shares), unless the tax is due because the Holder requests such shares ADSs (or such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued ADSs delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the third Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day third Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock ADSs delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable Fractional ADS deliverable upon conversion based on the Daily VWAP Last Reported Sale Price of the ADSs on the last relevant Conversion Date (or if such Conversion Date is not a Trading Day Day, the immediately preceding Trading Day).
(k) In accordance with the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued ADSs upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for the relevant Observation Period such ADSs, shall deliver such legal opinions and any fractional shares remaining after such computation other information or documentation and shall be paid comply with the Unrestricted Deposit Agreement and the Restricted Deposit Agreement (as the case may be), in casheach case, as required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Samples: Indenture (Bilibili Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section Section 14.02, Section Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or and, if applicable, deliver, as the case may be, to the converting Holder, in respect of each $1,000 in principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such NotePeriod, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k(j) of this Section Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15December 1, 2028 or during a Redemption Period 2030, shall be settled using the same forms and amounts of consideration.
(ii) Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after September 15December 1, 20282030, the Company shall use the same forms and amounts of consideration Cash Percentage for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Cash Percentage with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion amount of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and the Conversion Agent Company (if other than or the Trustee, upon the written request of the Company) shall inform converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xi) during after the date of issuance of a Notice of Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding September 15prior to the related Redemption Date, 2028in such Notice of Redemption or (ii) (in each caseon or after December 1, the “Cash Percentage Election Deadline”)2030, no later than December 1, 2030) and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does relevant Holders are not make such an election at or informed of a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and Percentage, the Company shall be deemed to have elected to settle, a Cash Percentage of 0% and the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02herein (subject to Section 14.02(j)). By notice At the time that the Company informs the Holders of any election pursuant to Holders (the “Irrevocable Election Notice”)second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee). For the avoidance of doubt, the Company may, prior failure to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) deliver a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Settlement Notice to the Holders, the Trustee and or the Conversion Agent (if other than the Trustee), ) shall not affect the right of the Company shall either post its irrevocable to elect a Cash Percentage or the validity or sufficiency of any such election on its website or disclose the same made in a current report on Form 8-K (or any successor form) that is filed accordance with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionsecond and third immediately preceding sentences.
(ivii) The For any conversion of Notes, the Daily Settlement Amounts, the Daily Net Settlement Amounts and Amounts, the Daily Conversion Values and the Settlement Amount shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion ValuesValues and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the corporate trust office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section Section 14.03(b) and Section Section 14.07(a), the Company shall pay or and deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and and, upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company Company, the Conversion Agent or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder Hxxxxx in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment or shares of Common Stock for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (2) above or any Fundamental Change Repurchase Date or Redemption Datedescribed in clause (3) above shall, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other the applicable Interest Payment Date Date, as the case may be, in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares of Common Stock that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares of Common Stock remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Global Payments Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September March 15, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which that occur during the relevant Conversion Date occurs during a Redemption Period period from, and any conversions for which the relevant Conversion Date occurs on or after September including, March 15, 20282020 to the close of business on the second Scheduled Trading Day immediately the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesDays.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September March 15, 20282020 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September March 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after March 15, 2020, the Company shall settle any such conversion on the Maturity Date), or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Day immediately succeeding the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date and any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Workday, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock ADSs in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15January 1, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15January 1, 20282023, no later than the close of business on the Trading Day immediately preceding September 15January 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of Notes shall be equal to US$1,000. Such Settlement Notice shall specify the converted Notes relevant Settlement Method and delivering shares in the case of Common Stock in respect an election of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”)Combination Settlement, the Trustee and relevant Settlement Notice shall indicate the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $Specified Dollar Amount per US$1,000 principal amount of Notes, including (at . If the Company’s option) Company delivers a specified minimum Cash Percentage Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes with an ability to continue to set in such Settlement Notice, the Cash Percentage Specified Dollar Amount per $US$1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionUS$1,000.
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (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 US$1,000 principal amount of Notes being converted a number of ADSs equal to the Conversion Rate in effect on the Conversion Date;
(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 US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock ADSs are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or (if applicable) 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 ADSs to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such shares ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver Company shall pay the certificates representing ADS Depositary’s fees for the shares issuance of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(f) Except as provided in Section 14.04Section14.04, no adjustment shall be made for dividends on any shares of Common Stock ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and ADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; Date (3) or, if the Company has specified such Interest Payment Date is not a Redemption Date that is after a Regular Record Date and on or prior to Business Day, the second Scheduled Trading day Business Day immediately succeeding the corresponding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for Neither the avoidance of doubt, all Holders of record on Trustee nor the Regular Record Date immediately preceding Conversion Agent (if other than the Maturity Date, Trustee) will have any Fundamental Change Repurchase Date duty to determine or Redemption Date, in each case, as described above, shall receive verify determination by the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless Company of whether their Notes any of the conditions to conversion have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Datesatisfied.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered ADSs shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares ADSs that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Sea LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15, 2028 or during the date of the Company’s issuance of a Redemption Period Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after March 1, 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the close of business on the Business Day before the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in any conversion for which the case relevant Conversion Date occurs (i) after the Company’s issuance of any conversions occurring (x) during a Redemption Period Notice and prior to the close of business on the Business Day before the related Redemption Date, or (yii) on or after September 15March 1, 20282025), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xi) during after the date of issuance of a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than Notice and prior to the close of business on the Trading Business Day immediately preceding September 15before the related Redemption Date, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Redemption Notice (and, in the percentage case of a partial redemption, in a notice sent on the consideration due upon conversion in excess relevant Redemption Notice Date to all Holders of the principal portion of the Notes being converted that will be paid in cash not called for redemption) or (the “Cash Percentage”)ii) on or after March 1, 2025, no later than March 1, 2025. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method with respect to settlesuch conversion. 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 Notes. 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 Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall settle, its be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Obligation by paying cash in respect Date that occurs on or after the date of delivery to the Holders of the principal portion Certain Distributions Notification until the Certain Distributions Conversion Period End Date.
(iv) The cash, shares of the converted Notes Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee)Physical Settlement applies, the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if Cash Settlement applies, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies, the Company shall pay or deliver, as the case may be, to set the Cash Percentage per converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or the second Business Day immediately following the last Trading Day of the relevant Observation Period, if any other Settlement Method applies. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on such Interest Payment Date for the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any or a Fundamental Change Repurchase Date or Redemption Date, in each case, as described Date referred to above, shall receive the full interest payment due on the Maturity Date or other applicable corresponding Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Model N, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the relevant applicable Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms except that, unless and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, until the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (orreceives Stockholder Approval, in the case of event that the Daily Share Amount for any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each caseduring such Observation Period exceeds the Daily Share Cap, the “Cash Percentage Election Deadline”)Daily Settlement Amount for such Trading Day shall be calculated as if the Daily Share Amount were equal to the Daily Share Cap, and the Company shall indicate have no obligation to deliver cash or any other consideration in respect of such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)shares. If the Company does not make such an election at or prior obtains Stockholder Approval, thereafter, there shall be no Daily Share Cap applicable to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect calculation of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any Daily Settlement Amounts due upon conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stockshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, complete and manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registeredregistered and deliver such Notice of Conversion to the Conversion Agent, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Last Trading Day of the relevant applicable Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Medicines Co /De)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on or before the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section Section 14.02.
(i) All conversions of Notes for which the relevant Conversion Dates Date occurs on or after September 15March 1, 2028 or during a Redemption Period 2027, shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions of Notes for which the relevant Conversion Date occurs on or after September 15March 1, 20282027, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) of Notes for which the relevant Conversion Date occurs on or after September 15March 1, 20282027, no later than the close of business on the Trading Day immediately preceding September 15March 1, 20282027) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder (other than cash in lieu of any fractional share), if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionherein. For the avoidance of doubt, such an irrevocable electionthe Company’s failure to make a timely election of the Cash Percentage, if madeas described above, will be effective without the need to amend not constitute a Default under this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionIndenture.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such converting 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest, if any. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, Date or any Fundamental Change Repurchase Date or Redemption Date, described in each case, as described above, clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Wec Energy Group, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b14.03(c) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance 55
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September February 15, 2028 2027, and all conversions for which the relevant Conversion Date occurs on or during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period on or after February 15, 2027, and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028the Company’s issuance of a Notice of Redemption with respect to the Notes but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption Notice, or (y) on or after September February 15, 20282027, no later than the close of business on the Trading Day immediately preceding September February 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2027). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows: (A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) Notes being converted a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed Conversion Rate in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due effect on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.56
Appears in 1 contract
Samples: Indenture (Tricida, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteClass A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15March 1, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates. By written notice to the Holders, the Company may, prior to March 1, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15March 1, 20282023, no later than the close of business on the Business Day immediately preceding March 1, 2023), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15March 1, 20282023, no later than the close of business on the Trading Business Day immediately preceding September 15March 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Cash Percentage per Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes at or above being converted a number of shares of Class A Common Stock equal to the specified minimum Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after March 1, 2023, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 Class A Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Class A Common Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow in the fifth sentence of this paragraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Class A Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Class A Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Alteryx, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15February 1, 2028 or during a Redemption Period 2022 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which that occur during the relevant Conversion Date occurs during a Redemption Period period from, and any conversions for which including, February 1, 2022 to the relevant Conversion Date occurs close of business on or after September 15, 2028the second Scheduled Trading Day immediately the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesDays.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) February 1, 2022 to the close of business on or after September 15, 2028the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September 15February 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2022). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 30 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after February 1, 2022, the Company shall settle any such conversion on the Maturity Date), or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding May 15, 2022, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Special Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on May 15, 2022 (if and to the Regular Record Date immediately preceding extent Special Interest is payable on the Maturity Date, ) and any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Special Interest Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (ServiceNow, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject If (i) the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual to issue 20% or more of its Common Shares upon conversion of the Notes (the “2022 Notes Shareholder Approval”) or (ii) the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual to issue 20% or more of its Common Shares upon conversion of its 5.00% convertible senior notes due 2021 (the “2021 Notes Shareholder Approval” and, together with the 2022 Notes Shareholder Approval, the “Shareholder Approval”), in each case, prior to the relevant Conversion Date (or, if earlier, December 1, 2021), and subject to this Section Section 14.02, Section Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following Company shall pay to the last Trading Day converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this Section 14.02. If the Company has received Shareholder Approval prior to the relevant Observation PeriodConversion Date (or, if earlier, December 1, 2021), and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock Share in accordance with subsection (k(j) of this Section Section 14.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify the Holders, the Trustee and the Conversion Agent within five Business Days of such approval.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15December 1, 2028 or during a Redemption Period 2021 shall be settled using the same forms and amounts Settlement Method. For the avoidance of considerationdoubt, if the Company has not received Shareholder Approval prior to December 1, 2021, Cash Settlement shall apply to all conversions of Notes with a Conversion Date occurring on or after December 1, 2021.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15December 1, 20282021, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) IfFollowing the Company’s receipt of Shareholder Approval, if, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15December 1, 20282021, no later than the close of business on the Trading Day immediately preceding September 15December 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2021). If the Company has received Shareholder Approval and does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) Subject to set the Cash Percentage per Company’s receipt of Shareholder Approval as described in this (a), the cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (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 Notes at being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects (or above the specified minimum is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 100 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 100 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockShare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockShares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, pursuant to Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section Section 14.03(b) and Section Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any shares of Common Stock Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 Shares to which such Holder shall be entitled entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered Shares shall be issuable upon conversion is registered shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Invacare Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 45 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September October 15, 2028 or during a Redemption Period 2018 shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September October 15, 20282018, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or in such period, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and Company shall inform in writing the Trustee, the Conversion Agent (if other than the Trustee) and the converting Holders of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September October 15, 20282018, no later than the close of business on the Trading Day immediately preceding September October 15, 20282018) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionherein.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify in writing the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order instruction of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding date that the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that interest is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Datepaid; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, Period the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Citrix Systems Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b14.07(a) and Section 14.07(a14.14(b), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting HolderHolder no later than two (2) Business Days following the applicable conversion of the Notes, in respect of each $1,000 principal amount of principal and accrued and unpaid interest on the Notes being convertedconverted (or if a PIK Payment has been made, a “Settlement Amount” equal to in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof), at the sum election of the Daily Settlement Amounts for each Company, (x) cash (“Cash Settlement”), (y) shares of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or (z) a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the The Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028)Date, the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). Date.2 If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or Physical Settlement during such period or with respect to such conversion and the Company shall be deemed to have elected to settlePhysical Settlement. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the Company relevant Settlement Notice shall settle, its Conversion Obligation by paying cash in respect of indicate the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set and interest thereon. If the Cash Percentage 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 Notes at or above the specified minimum Cash Percentage set forth and interest thereon in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability and interest thereon shall be deemed to continue be $1,000 (or if a PIK Payment has been made, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof). 2 NTD: Confirm that one Trading Day election notification works if there are Physical Notes.
(iii) The shares of Common Stock and cash the Company shall pay and/or deliver, as the case may be, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, in respect of each $1,000 amount of principal and accrued and unpaid interest on the Notes being converted (or if a PIK Payment has been made, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof): a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, in respect of each $1,000 amount of principal and accrued and unpaid interest on the Notes being converted, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes at and accrued and unpaid interest thereon (or above if a PIK Payment has been made, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof) being converted cash in an amount equal to the specified minimum Cash Percentage set forth sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects to satisfy its Conversion Obligation in respect of such Irrevocable Election Noticeconversion by Combination Settlement, the Company shallshall pay or deliver, after as the date case may be, in respect of such election, inform Holders converting their each $1,000 principal amount of Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected and accrued and unpaid interest thereon being converted (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if a PIK Payment has been made, will be effective without in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof), a Settlement Amount equal to the need to amend this Indenture or sum of the Notes, including pursuant to Section 10.01(k). However, Daily Settlement Amounts for each of the Company may nonetheless choose to execute such an amendment at its option30 consecutive Trading Days during the related Observation Period.
(iv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal all transfer or similar taxes, if any, pursuant to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. Notwithstanding anything to the contrary contained herein, to the extent that an indirect holder of a Global Note held indirectly through a participant submits irrevocable instructions to convert any portion of such Note, such Holder shall be deemed for purposes of Regulation SHO to have converted the applicable portion of such Note at the time of delivery of such instructions, regardless of when shares of Common Stock are delivered to such Holder or its participant. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b14.07(a) and Section 14.07(a14.14(b), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. Notwithstanding the foregoing, with respect to the Company’s satisfaction of its Conversion Obligation through Physical Settlement for which the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the settlement shall occur on the Maturity Date. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued Accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeitedconverted into shares of Common Stock at the Conversion Rate. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if If Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date (in addition to having the value of such interest converted in connection with such conversion) will receive the full amount of interest payable on such Notes in cash on the corresponding such Interest Payment Date notwithstanding the conversion. Therefore, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of for the relevant Observation PeriodConversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Convertible Note Subscription Agreement (L&F Acquisition Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 Notes being converted, (x) a “Settlement Amount” number of shares of Common Stock equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteConversion Rate, together with casha cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
14.02 (ithe “Base Conversion Amount”) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028)for conversions where an Early Conversion Payment is due upon conversion, the Company elects to settle all or a portion of its Early Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Amount, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the third Scheduled Trading Day immediately following the relevant Conversion Date, unless (i) such Conversion Date (oroccurs following the Regular Record Date immediately preceding the Maturity Date, in the which case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in make such Cash Percentage Notice the percentage delivery (and payment, if applicable) of the consideration due upon conversion Base Conversion Amount on the Maturity Date, (ii) a Make-Whole Adjustment Event described in excess clause (b) of the principal portion definition of Fundamental Change occurs in which the Notes being converted that will be paid Reference Property following such Make-Whole Adjustment Event is composed entirely of cash, in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, which case the Company shall no longer have make payment of the right to elect a Make-Whole Cash Percentage for such conversion Settlement Amount on the tenth Business Day following the Conversion Date or during such period and (iii) the Company elects Physical Settlement of the Early Conversion Payment, in which case the Company shall be deemed to have elected to settle, deliver the Company shall settle, its Base Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee Amount and the Early Conversion Agent (if other than Settlement Amount on the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly third Scheduled Trading Day following the last day Trading Day of the Observation applicable Averaging Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the The Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar other governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any the shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full upon conversion rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the Notes so convertedconverted on such Interest Payment Date; provided provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (42) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, ; or (3) for conversions following the avoidance close of doubt, all Holders of record business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, . The Company shall receive not be required to convert Notes not accompanied by funds equal to the full amount of interest payment due payable on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their such Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Daterequired by this subsection (h).
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes (including upon Physical Settlement of any applicable Early Conversion Payment) and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion with respect to each of the Base Conversion Amount and, if applicable, the Early Conversion Settlement Amount based on the Daily VWAP Closing Sale Price of the Common Stock on the last Trading Day relevant Conversion Date. For purposes of determining cash payments in lieu of fractional shares pursuant to this subjection (j), the principal amount of Notes being converted by the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that Holder shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashaggregated.
Appears in 1 contract
Samples: Indenture (Solazyme Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section Section 14.02.
(i) All conversions of Notes for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after September January 15, 2028 or during a Redemption Period 2027, shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions of Notes for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the Scheduled Trading Day immediately preceding the related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after September January 15, 20282027, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs (x) during after the date of issuance of a Redemption PeriodNotice and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September January 15, 20282027, no later than the close of business on the Trading Day immediately preceding September January 15, 20282027) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder (other than cash in lieu of any fractional share), if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionherein. For the avoidance of doubt, such an irrevocable electionthe Company’s failure to make a timely election of the Cash Percentage, if madeas described above, will be effective without the need to amend not constitute a Default under this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionIndenture.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Periodb)above. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such converting 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest, if any. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in the clause (2) above and any Fundamental Change Repurchase Date or Redemption Date, described in each case, as described above, clause (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Ormat Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section Section 14.02, Section Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, cause to be delivered to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” number of shares of Common Stock equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteConversion Rate, together with casha cash payment, if applicable, in lieu of delivering any fractional shares (assuming delivery of the maximum number of shares of Common Stock due upon conversion that do not represent a fractional share of Common Stock Stock) in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading second Business Day immediately following the relevant Conversion Date, provided that, with respect to any Conversion Date (or, in following the case of any conversions occurring Regular Record Date immediately preceding (x) during a Redemption Period, in such Redemption Noticethe Maturity Date, or (y) on if any Note that has been called (or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028deemed called as provided in Section 16.02(b)) (in each casefor Optional Redemption, the “Cash Percentage Election Deadline”)related Redemption Date, and then the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for settle any such conversion or during such period and on the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders Maturity Date (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does Maturity Date is not timely notify Holdersa Business Day, such Cash Percentage will be the specified minimum Cash Percentage set forth in next Business Day), or the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionrelated Redemption Date. For the avoidance of doubt, such an irrevocable election, if made, will be effective without neither the need to amend Trustee nor any agent thereof or under this Indenture shall have any responsibility to deliver shares of Common Stock to any person or the Notesdeal with cash payments in relation to conversions, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of except for cash payable payments in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common StockStock and in the circumstances set forth in Section 14.03(b) and Section 14.07(a). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) . A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the The Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 entitled, in certificated form or book-entry format through the Depositary (provided that shares of Common Stock required to bear the Affiliate Restrictive Stock Legend shall be issued in certificated form or in book-entry form on the books of the Company’s transfer agent), in satisfaction of the Company’s Conversion Obligation.
(d) . In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) . If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) . Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) . Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) . Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(j) . The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) . The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts Last Reported Sale Price for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashConversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ki) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (i) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September August 15, 2028 or during a Redemption Period 2018 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the The Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but but, except for any conversions that occur during the period from, and including, August 15, 2018 to the close of business on the second Scheduled Trading Day immediately the Maturity Date, the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September August 15, 20282018 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September August 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2018). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 30 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(g). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth provided in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after August 15, 2018, the Company shall settle any such conversion on the Maturity Date), or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest any Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding February 1, 2019, if Special Interest is payable on the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and date on or prior to the second Scheduled Trading day immediately succeeding which the corresponding Special Interest Payment Datepayment is made; or (43) to the extent of any interest constituting Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on February 1, 2019 (if and to the Regular Record Date immediately preceding extent Special Interest is payable on the Maturity Date, ) and any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence shall receive the full interest Special Interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Special Interest Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Akamai Technologies Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.028.02, Section 14.03(b8.03(b) and Section 14.07(a8.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder of the Notes, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 8.02(i) (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with Section 8.02(i) (“Combination Settlement”), at its election, as set forth in this Section 8.02.
(i) All conversions occurring on or after December 1, 2018 and all conversions occurring after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method.
(ii) Except for any conversions that occur after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date and any conversions occurring on or after December 1, 2018, the Company shall use the same Settlement Method for all conversions occurring on the second Business 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) Subject to the two immediately succeeding sentences, if, in respect of any Conversion Date, the Company elects a Settlement Method in respect of such Conversion Date, the Company, through the Trustee, shall deliver the relevant Settlement Notice to converting Holders of the Notes no later than the close of business on the Trading Day immediately following the last Trading Day relevant Conversion Date. In the case of any conversions occurring on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, if the Company elects a Settlement Method, the Company shall notify Holders of the Notes of the relevant Settlement Method in such Redemption Notice. In the case of any conversions on or after December 1, 2018, if the Company elects a Settlement Method, the Company, through the Trustee, shall deliver a Settlement Notice to all Holders of the Notes no later than December 1, 2018. If the Company does not elect a Settlement Method prior to the relevant deadline set forth in the three immediately preceding sentences, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. The 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. If the Company elects Combination Settlement, but does not timely notify converting Holders of the Specified Dollar Amount, such Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company 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 a number of shares of Common Stock equal to the product of the aggregate principal amount of Notes to be converted, divided by $1,000, and the Conversion Rate in effect on the Conversion Date;
(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 Notes being converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02Period.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e8.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 VIII on the Conversion Date for such conversion. No Holder may surrender Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.039.03. If more than one Note shall be surrendered for conversion at one time by the same HolderHolder of the Notes, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder of the Notes has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due (including any cash in lieu of fractional shares) in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method (subject to the provisions of Section 8.03(b) and Section 8.07(a)). If any shares of Common Stock are due to converting HoldersHolders of the Notes, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder of the Notes but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder of the Notes submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the such Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder of the Notes shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue Interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with clause (g) above.
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(d) and Section 14.07(a13.07(a), upon conversion of any Note, Note on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 25 Trading Days during the relevant Observation Period for such Note, if any, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02.
(i) All conversions for which the relevant Conversion Dates Date occurs (x) on or after September 15December 1, 2028 or 2027 and (y) during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15December 1, 20282027, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to deliver a notice to settle all or a portion of its the Conversion Obligation for the Notes in excess of the principal principle portion of the Notes being converted in cash, the Company will deliver a notice cash (the “Cash Percentage Settlement Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Redemption Notice, Notice or (y) on or after September 15December 1, 20282027, no later than the close of business on the Scheduled Trading Day immediately preceding September 15December 1, 20282027) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionconverted.
(iv) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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.
(v) Prior to close of business on the Scheduled Trading Day immediately preceding December 1, 2027 (other than during a Redemption Period), the Company may, at its election, by notice ( an “Irrevocable Election Notice”) to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with provisions of this Indenture, irrevocably elect to settle its Conversion Obligation with respect to all conversions subsequent to the date of the Irrevocable Election Notice through a Cash Percentage of 0 percent for each $1,000 principal amount of Notes; provided, however, that any irrevocable election notice given during a Redemption Period shall only apply to Notes submitted for conversion subsequent to the applicable Redemption Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b13.03(c) and Section 14.07(a13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp stamp, or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14XIII.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestSpecial Interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished extinguished, or forfeited. Upon a conversion of Notes, any accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular close on business on the Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately succeeding following the corresponding Special Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Special Interest Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding following the corresponding Special Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Special Interest Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (3) above, or any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence (if and to the extent that Special Interest is payable on the Maturity Date) shall receive the full interest Special Interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or or repurchased, as applicable, applicable following such Regular Special Interest Record Date.
(ji) The Subject to Section 13.13, the Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
(k) Any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase or maturity of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder, those withholding taxes may be set off against payments of cash or Common Stock, if any, payable on the Notes to such Holder.
Appears in 1 contract
Samples: Indenture (Dropbox, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company This Note will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to following the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered (1) a duly completed and executed irrevocable written notice to the requirements set forth Company in subsection the form attached hereto as Exhibit I (bthe “Conversion Notice”), (2) abovethe certificate evidencing this Note (the “Note Certificate”) to the Company for cancellation or notation of the outstanding principal amount of this Note after partial conversion, and (3) the total amount it intends to convert (considering all or a portion of the Principal Amount, the Interest and, if applicable, the Prepayment Premium) (the “Conversion Amount”), and (4) the Common Shares conversion documents pursuant to the procedures of the Transfer Agent in effect at that time.
2.4.1. Except as set forth in Subject to the provisions of Section 14.03(b) and Section 14.07(a)2.1.1 herein, on or before the 3rd Business Day following the date of receipt of a Conversion Notice, the Company shall pay will transmit by facsimile or deliver, as other electronic means a confirmation of receipt of such Conversion Notice to the case may beHolder (the “Receipt Confirmation” and such date of transmission, the consideration due in respect of the Conversion Obligation on the second “Receipt Confirmation Date”). Within five (5) Business Day immediately following the last Trading Day of Days after the relevant Observation Period. If any shares of Common Stock are due to converting HoldersReceipt Confirmation Date, the Company shall issue or cause will (i) take all actions and execute all documents and procure that the Transfer Agent take all actions and execute all documents necessary to be issued, and deliver to effect the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through issuance of the Depositary for the full number of shares of Common Stock to which such the Holder shall will be entitled in satisfaction of any conversion pursuant to this Section 2 and (ii) cancel this Note Certificate.
2.4.2. No fractional shares of the Company’s Conversion Obligation.
(d) capital stock will be issued upon conversion under this Note. In case lieu of any Note shall fractional share to which the Holder would otherwise be surrendered for partial conversionentitled, the Company shall execute will pay to the Holder in cash the amount of the unconverted principal and interest balance of this Note that would otherwise be converted into such fractional share.
2.4.3. At its expense, the Trustee shall authenticate Company will, as soon as practicable thereafter, issue and deliver to such Holder a certificate or upon certificates or electronically through the written order DWAC or other established clearing corporation performing similar functions for the number of shares which the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal is entitled upon such conversion, together with any other securities and property to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of which the Holder of the new Notes issued is entitled upon such conversion being different from under the name terms of this Note, including a check payable to the Holder of the old Notes surrendered for such conversionany cash amounts payable as described herein.
(e) 2.4.4. If a Holder submits Conversion Date (as defined below) in respect of this Note would otherwise fall during a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, period in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing register of the shares of Common Stock being issued in is closed generally or for the purpose of establishing entitlement to any distribution or other rights attaching to the Common Stock (a name other than “Book Closure Period”), such Conversion Date will be postponed to the Holder’s name until first Trading Day following the Trustee receives a sum sufficient to pay any tax that is due by expiry of such Holder in accordance with the immediately preceding sentenceBook Closure Period.
(f) Except as provided in Section 14.042.4.5. Once a Conversion Notice has been issued, no adjustment shall it cannot be made for dividends on any shares of Common Stock issued upon withdrawn, unless the Company exercises its Deferral Right.
2.4.6. Upon conversion of any this Note as provided in pursuant to the Section 2, the Holder shall surrender this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trusteeduly endorsed, or the Custodian at the direction principal offices of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of or any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement transfer agent of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversionCompany.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Atlas Lithium Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 14.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall will pay or deliver, as the case may beapplicable, to the converting Holder(x) cash (“Cash Settlement”); (y) shares of Common Stock, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cashtogether, if applicable, with cash in lieu of delivering any fractional share of Common Stock in accordance with subsection Section 13.02(k) (k“Physical Settlement”); or (z) a combination of this cash and shares of Common Stock, together, if applicable, with cash in lieu of delivering any fractional share of Common Stock in accordance with Section 14.0213.02(k) (“Combination Settlement”), in each case at the Company’s election, subject to the following.
(i) All Except as provided in clause (ii) or (iii) below, the Company must use the same Settlement Method for all conversions with a Conversion Date that occurs on the same day, but the Company will not be obligated to use the same Settlement Method for which the relevant conversions with Conversion Dates that occur on different days. If the Company elects a Settlement Method for a conversion with a Conversion Date that occurs before February 3, 2025, then the Company will send notice of such Settlement Method to the converting Holder no later than the Close of Business on or the Business Day immediately after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of considerationConversion Date.
(ii) Except for any as provided in clause (iii) below, all conversions for which the relevant with a Conversion Date occurring on or after February 3, 2025 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders (with a copy to the Conversion Agent) no later than the Close of Business on February 3, 2025.
(iii) Notwithstanding anything to the contrary in clauses (i) or (ii) above, if the Company calls any Notes for redemption, then (x) the Company will specify in the related Notice of Optional Redemption (and, in the case of an Optional Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Optional Redemption) the Settlement Method that will apply to all conversions of Notes called for redemption pursuant to such Notice of Optional Redemption with a Conversion Date that occurs during a on or after the date the Company has sent such Notice of Optional Redemption Period and any conversions for before the Business Day immediately before the related Redemption Date (or, if the Company Defaults in the payment of the Redemption Price, the day on which such Default is no longer continuing); and (y) if the relevant Conversion related Redemption Date occurs on or after September 15February 3, 20282025, the Company shall use then such Settlement Method must be the same forms and amounts of consideration for Settlement Method that applies to all conversions occurring with a Conversion Date that occurs on the same Conversion Dateor after February 3, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates2025.
(iiiiv) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior timely elect a Settlement Method with respect to the applicable Cash Percentage Election Deadlineconversion of any Note, then the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall will be deemed to have elected to settle, the Default Settlement Method. If the Company shall settle, its Conversion Obligation by paying cash in timely elects Combination Settlement with respect to the conversion of any Note but does not timely notify the converting Holder of the principal portion of applicable Specified Dollar Amount, then the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice Specified Dollar Amount for such conversion will be deemed to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each be $1,000 per $1,000 principal amount of Notes. For the avoidance of doubt, including (at the Company’s optionfailure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default.
(v) a specified minimum Cash Percentage per $1,000 principal amount The Company will have the right, exercisable at its election by sending notice of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice exercise to the Holders, Holders (with a copy to the Trustee and the Conversion Agent (if other than the TrusteeAgent), to irrevocably fix the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) Settlement Method that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions of Notes with a Conversion Date that occurs on Conversion Dates occurring subsequent or after the date such notice is sent to delivery Holders, provided that (x) such Settlement Method must be a Settlement Method that the Company is then permitted to elect (for the avoidance of such Irrevocable Election Noticedoubt, including pursuant to, and subject to, the other provisions of this Section 13.02(a)); provided, however, that (y) no such irrevocable election will affect any Cash Percentage Settlement Method theretofore elected (or deemed to be elected) with respect to any conversionNote pursuant to the other provisions of this Section 13.02(a); and (z) upon any such irrevocable election, the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However10.01(j) (it being understood, however, that the Company may nonetheless choose to execute such an amendment at its option).
(ivvi) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by If the Company promptly following changes the last day Default Settlement Method pursuant to the proviso to the definition of such term or irrevocably fixes the Observation Period. Promptly after such determination of Settlement Method pursuant to Section 13.02(a)(v), then the Daily Company will either post the Default Settlement Amounts, Daily Net Method or fixed Settlement Amounts or the Daily Conversion ValuesMethod, as applicable, on its website or disclose the case may be, and same in a Current Report on Form 8-K (or any successor form) that is filed with the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationSEC.
(b) Subject to Section 14.02(e13.03(b) and Section 13.07(a), the type and amount of consideration due in respect of each $1,000 principal amount of a Note to be converted will be determined as follows:
(i) if Physical Settlement applies to such conversion, subject to Section 13.02(k), a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;
(ii) if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or
(iii) if Combination Settlement applies to such conversion, consideration consisting, subject to Section 13.02(k), of (x) a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (y) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.
(c) Subject to Section 13.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(i) and, if required, pay all transfer and similar taxes, if any as provided in Sections 13.02(e) or (f), and (ii) in the case of a Physical Note or when required by Applicable Procedures in effect at that time in the case of a Global Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted (which must be in an Authorized Denomination) and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(i). The Trustee (and, if different, the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion13. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.02. Nothing herein shall preclude any withholding of tax required by law. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall (to the extent permitted by the applicable rules of the Depositary, in the case of Global Notes) be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(cd) A Except as provided in Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company will pay or deliver, as applicable, the consideration due upon conversion of any Note as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the second Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies to such conversion, on or before the second Business Day immediately after such Conversion Date; provided, however, that if Physical Settlement applies to the conversion of any Note with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then, solely for purposes of such conversion, the Company will pay or deliver, as applicable, the consideration due upon such conversion no later than the Maturity Date and the Conversion Date will be deemed to be the second Business Day immediately before the Maturity Date. Subject to Section 13.02(i) and Section 13.02(j), a Note shall be deemed to have been converted immediately prior to the close Close of business Business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bc) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(de) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, but with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon in connection with such partial conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ef) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(fg) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413.
(gh) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hi) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close Close of business Business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close Close of business Business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from after the close Close of business Business on any Regular Record Date to the open Open of business Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of such interest payable on the Notes so converted; provided provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and prior to the Business Day immediately following the corresponding Interest Payment Date and the conversion occurs after such Regular Record Date and prior to such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (3) if Date and the Company has specified a Redemption Date that is conversion occurs after a such Regular Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding the corresponding following such Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for (or other evidence representing) any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close Close of business Business on the related Conversion Date (in the case of Physical Settlement) or the last VWAP Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on (i) the Daily VWAP on the relevant Conversion Date (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (ii) the Daily VWAP on the last VWAP Trading Day of the relevant applicable Observation Period. For each Note surrendered for conversion, if in the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number case of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashCombination Settlement.
Appears in 1 contract
Samples: Indenture (Pacira BioSciences, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 Notes being converted, a “Settlement Amount” number of shares of Common Stock equal to the sum Conversion Rate in effect immediately prior to the close of the Daily Settlement Amounts for each of the 20 Trading Days during business on the relevant Observation Period for such NoteConversion Date, together with casha cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the . The Company shall use deliver the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, due in respect of any Conversion Date (or in the case conversion of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading third Business Day immediately following the relevant Conversion Date; provided that if such Conversion Date (or, in occurs following the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day Regular Record Date immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election DeadlineMaturity Date, the Company shall no longer have make such delivery (and payment, if applicable) on the right to elect a Cash Percentage for such conversion or during such period and Maturity Date. However, after the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect has been replaced by Reference Property consisting solely of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this cash (pursuant to Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee14.07), the Company shall either post its irrevocable election pay the consideration due in respect of conversion on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly tenth Business Day immediately following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily related Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationDate.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, (1) book-entry transfer such Holder’s beneficial interest therein to the Conversion Agent, (2) comply with the Depositary’s then applicable conversion procedures of the Depositary in effect at that time and, and (3) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note Note, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall promptly notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion14. No Notice of Conversion with respect to any Notes may be surrendered for conversion delivered by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the The Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any the shares of Common Stock upon conversionthe conversion of the Notes, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversionconversion of a Note, a the Holder thereof shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except unless such Holder is the Holder on a Regular Record Date and such conversion occurs between such Regular Record Date and the Interest Payment Date to which it relates as set forth below, and the Company shall not adjust the Conversion Rate to account for accrued and unpaid interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion Holders of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after at the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount payment of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversionconversion of such Notes at any time after the close of business on the applicable Regular Record Date. Notes surrendered for conversion during the period from by a Holder after the close of business on any Regular Record Date but prior to the open of business on the immediately following next Interest Payment Date must be accompanied by funds payment of an amount equal to the amount of interest that will be payable on the Notes so converted; provided provided, however, that no such payment shall need be required made (1) for conversions if, following the Regular Record Date immediately preceding the Maturity Date; (2) if a Fundamental Change, the Company has specified a Fundamental Change Repurchase Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (32) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; (3) with respect to any Notes surrendered for conversion following the Regular Record Date immediately preceding the Maturity Date; or (4) only to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such NoteNotes. ThereforeAs a result of the foregoing, for the avoidance of doubt, Company shall pay interest on the Maturity Date on all Holders of record on Notes converted after the Regular Record Date immediately preceding the Maturity DateDate , any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, and converting Holders shall receive not be required to pay the full Company an equivalent interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Dateamount.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP Closing Sale Price of the Common Stock on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashConversion Date.
Appears in 1 contract
Samples: Indenture (Clean Energy Fuels Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, if the Company has not received the Shareholder Approval prior to the relevant Shareholder Approval Deadline, the Company shall deliver to Holders in respect of each $1,000 principal amount of Notes being converted a number of Ordinary Shares equal to the Conversion Rate in effect on the second Business Day immediately following Conversion Date, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (j) of this Section 14.02 (any settlement of a conversion of Notes pursuant to this sentence shall be deemed to be a “Physical Settlement” for purposes of this Indenture and the last Trading Day Notes, unless the context shall otherwise require). Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 16.02, upon conversion of any Note, if the Company has received Shareholder Approval prior to the relevant Observation PeriodShareholder Approval Deadline, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a (x) cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), (y) Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock Ordinary Share in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or (z) a combination of cash and Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional Ordinary Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify Holders, the Trustee and the Conversion Agent prior to the close of business on such day.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 151, 2028 or 2018, and all conversions for which the relevant Conversion Date occurs during a Tax Redemption Period Period, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for (x) any conversions for which the relevant Conversion Date occurs during a any Tax Redemption Period and (y) any conversions for which the relevant Conversion Date occurs on or after September 151, 20282018, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but (as long as the Company has received Shareholder Approval prior to the relevant Shareholder Approval Deadline) the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Tax Redemption Period or (y) the period beginning on or after September 151, 20282018, as the case may be), the Company has received Shareholder Approval prior to the relevant Shareholder Approval Deadline and elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Tax Redemption Period, in such the relevant Tax Redemption Notice, Notice or (y) on or after September 151, 20282018, no later than the close of business on the Trading Day immediately preceding September 151, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2018). If (a) the Company has received Shareholder Approval prior to the relevant Shareholder Approval Deadline and (b) the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) With respect to set any conversion for which the Cash Percentage per Company has received Shareholder Approval prior to the relevant Shareholder Approval Deadline, the cash, Ordinary Shares or combination of cash and Ordinary Shares in respect of any conversion of Notes (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 Notes at or above being converted a number of Ordinary Shares equal to the specified minimum Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockOrdinary Share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockOrdinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, in the case of Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock Ordinary Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 Ordinary Shares to which such Holder shall be entitled in full or partial satisfaction of the Company’s Conversion Obligation, as the case may be.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock Ordinary Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock Ordinary Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and Ordinary Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the immediately following Business Day); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; Date (3) or, if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding such Interest Payment DateDate is not a Business Day, the immediately following Business Day); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered Ordinary Shares shall be issuable upon conversion is registered shall be treated as a stockholder the holder of record of such Ordinary Shares as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion, other than with respect to the right to receive the consideration due upon conversion and, if applicable, accrued interest.
(kj) The Company shall not issue any fractional share of Common Stock Ordinary Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock Ordinary Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed conversion to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadlinewhich Combination Settlement applies, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (UTi WORLDWIDE INC)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall shall, at its election, pay or deliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each Common Stock (“Physical Settlement”) or a combination of cash and shares of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock (“Combination Settlement”), as set forth in accordance with subsection (k) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15January 1, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts Settlement Method (including the same relative proportion of consideration.
(iicash and/or shares of the Common Stock) Except for any as all other conversions for which the relevant Conversion Date occurs during a Redemption Period and occurring on or after January 1, 2020. Except for any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282020, the Company shall use the same forms and amounts Settlement Method (including the same relative proportion of consideration cash and/or shares of the Common Stock) for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in If the case of any conversions occurring (x) during Company elects a Redemption Period or (y) on or after September 15, 2028)Settlement Method, the Company elects shall deliver notice to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and Holders through the Conversion Agent (if other than of such Settlement Method the Trustee) Company has selected no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15January 1, 20282020, no later than the close of business on the Trading Day immediately preceding September 15January 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinetimely elect a Settlement Method, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal portion amount of Notes shall be equal to $1,000. If the converted Notes and delivering shares of Common Stock Company has timely elected Combination Settlement in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and any conversion but does not timely notify the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each Specified Dollar Amount per $1,000 principal amount of Notes, including or the Company is deemed to have elected Combination Settlement, the Specified Dollar Amount shall be deemed to be $1,000.
(at iii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company’s optionCompany in respect of any conversion of Notes (the “Settlement Amount”) a specified minimum Cash Percentage per shall be computed by the Company 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 Notes with an ability being converted a number of shares of Common Stock equal to continue the Conversion Rate on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(B) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth being converted cash in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice an amount equal to the Holders, sum of the Trustee and Daily Conversion Values for each of the 20 consecutive VWAP Trading Days during the related relevant Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Agent (if other than the Trustee)Obligation in respect of such conversion by Combination Settlement, the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts pay and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Valuesdeliver, as the case may be, and to the converting Holder in respect of each $1,000 principal amount of Notes being converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the related Observation Period (plus cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Common Stock, 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, if applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(i) To convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures;
(B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g); and
(ii) To convert a Certificated Note, the Holder must:
(A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent;
(B) if required, furnish appropriate endorsements and transfer documents;
(C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e); and
(D) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bSection 14.02(b) above. Except as set forth in Subject to the provisions of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation on on:
(i) the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement; or
(ii) the third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash Settlement or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary Depositary, as the case may be, 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) In case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversionconversion of a Note, a the converting Holder shall not receive any separate cash payment for representing accrued and unpaid interest, if any, except as set forth in the paragraph below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date and for the payment of interest, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of after the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall need be required made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; ;
(2ii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; or
(3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4iii) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive and retain the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (ii) the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion in an amount based on (i) the Daily VWAP on the relevant Conversion Date if the Company elects Physical Settlement or (ii) the Daily VWAP on the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have electedelect) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and and, if applicable, any fractional shares share remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Whiting Petroleum Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall shall, at its election, pay or deliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection Section 14.02(i) (k“Physical Settlement”), or a combination of cash and shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 14.02(i) of (“Combination Settlement”), as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
Notes (iia) Except for any conversions for which the relevant Conversion Date occurs during on or after December 15, 2025, (b) occurring after a Redemption Period Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date and (iii) following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, shall be settled using the same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock). Except for (1) any conversions for which the relevant Conversion Date occurs on or after September December 15, 20282025, (2) any conversions of Notes called for Redemption pursuant to Section 16.01 occurring after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, and (3) any conversion following the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(ii), in each case, the Company shall use the same forms and amounts Settlement Method (including the same relative proportion of consideration cash and/or shares of Common Stock in the case of Combination Settlement) for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiii) If, Unless the Company has irrevocably fixed the Settlement Method as described in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028this Section 14.02(ii), the Company elects shall send or cause to settle all or a portion of its Conversion Obligation in excess be sent written notice of the principal portion of the Notes being converted Settlement Method determined in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may beaccordance with this Section 14.02(a) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) (a) no later than the close of business 1:00 p.m., New York City time, on the Trading Day immediately following the relevant related Conversion Date Date, (or, b) in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September December 15, 20282025, no later than December 15, 2025 or (c) in the case of any conversion of Notes called for Redemption pursuant to Section 16.01 occurring on or after a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding September 15the related Redemption Date, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)Redemption. If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to timely elect a Cash Percentage for such conversion or during such period and Settlement Method, the Company shall be deemed to have elected to settle, the “Default Settlement Method” (as defined below). If the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and elects Combination Settlement but does not timely notify the Conversion Agent (if other than of the Trustee)Specified Dollar Amount per $1,000 principal amount, such Specified Dollar Amount shall be deemed to be $1,000. The “Default Settlement Method” will initially be Combination Settlement with a Specified Dollar Amount of $1,000. However, the Company may, prior from time to September 15time, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess change the Default Settlement Method by sending written notice of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (if other than the Trustee). In addition, the Company shall either post its irrevocable election on its website or disclose may, by sending notice to the same in Holders, irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect that will apply to all conversions with a current report on Form 8-K (or any successor form) Conversion Date that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such electionnotice. Notwithstanding the foregoing, inform Holders converting their Notes of no such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth change in the Irrevocable Election Notice. An Default Settlement Method or irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage settlement method theretofore elected (or deemed to be elected) with respect to any conversionNote pursuant to this Section 14.02(a). Concurrently with providing notice to all Holders of a change in the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company shall promptly issue a Current Report on Form 8-K or press release announcing such change to the Default Settlement Method or election to irrevocably fix the Settlement Method, as the case may be. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k)Article 10. However, the Company may nonetheless choose to execute such an amendment at its option.
(iviii) The Daily cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement AmountsAmount”) shall be computed by the Company as follows:
(a) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Daily Net Settlement Amounts and Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion);
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values shall be determined by for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and
(c) if the Company promptly following elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts Company shall pay or the Daily Conversion Valuesdeliver, as the case may be, and to the converting Holder in respect of each $1,000 principal amount of Notes being converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related Observation Period (plus cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(eStock issuable upon conversion), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Cable One, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15June 1, 2028 or during a Redemption Period 2024 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Subject to subclause (i), above and notwithstanding anything to the contrary in subclause (iv) below, where a Notice of Redemption has been sent pursuant to Article 16, the Company will specify in the related Notice of Redemption the Settlement Method (and in the case of an election of Combination Settlement the relevant Notice of Redemption shall indicate the Specified Dollar Amount) for all conversions with a Conversion Date occurring during the period from and including the date the Notice of Redemption was sent to the close of business on the date that is the later of (1) the Business Day immediately preceding the related Redemption Date and (2) if the Company fails to pay the Redemption Price on the Redemption Date as specified in the Notice of Redemption, such later date on which the Redemption Price is paid.
(iii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 20282024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiiv) If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15June 1, 20282024, no later than the close of business on the Trading Day immediately preceding September 15June 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2024). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. 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 Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in this Section 14.02(a), the Company shall settle, its be permitted to elect Physical Settlement in any Certain Distributions Notification as set forth in Section 14.01(b)(iii) and any such election shall be applicable to conversions with Conversion Obligation by paying cash in respect Dates that occur from the date of the principal portion Certain Distributions Notification until the related Certain Distributions Conversion Period End Date.
(v) The cash, shares of the converted Notes Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivvi) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)) and (5) if required, pay all transfer or similar taxes. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation PeriodDebenture, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes Debentures being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15March 1, 2028 2042 or during after the Company’s issuance of a Redemption Period Notice with respect to the Debentures and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except Prior to March 1, 2042, except for any conversions for which that occur after the relevant Conversion Date occurs during Company’s issuance of a Redemption Period and any conversions for which Notice with respect to the relevant Conversion Date occurs on or after September 15, 2028Debentures but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in the period beginning on, and including, March 1, 2042 and ending on, and including, the third Scheduled Trading Day immediately preceding the Maturity Date, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Debentures and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15March 1, 20282042, no later than the close of business on the Trading Day immediately preceding September 15March 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2042). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Debentures shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders Debentures (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder a number of shares of Common Stock equal to the Irrevocable Election Notice using product of (1) the aggregate principal amount of Debentures to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage specified (Settlement, the Company shall pay to the converting Holder in such Irrevocable Election Notice) for respect of each $1,000 principal amount of NotesDebentures being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice Debentures being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 20 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note Debenture shall be entitled to convert a Note Debenture as set forth above, such Holder shall (i) in the case of a Global NoteDebenture, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note Debenture (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes Debentures to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such NotesDebentures, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes Notice of Conversion with respect to any Debentures may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes Debentures and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0315.02. If more than one Note Debenture shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes Debentures shall be computed on the basis of the aggregate principal amount of the Notes Debentures (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note Debenture shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth otherwise provided in Section 14.03(b) and or Section 14.07(a)14.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note Debenture shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note Debenture so surrendered a new Note Debenture or Notes Debentures in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered NoteDebenture, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes Debentures issued upon such conversion being different from the name of the Holder of the old Notes Debentures surrendered for such conversion.
(e) If a Holder submits a Note Debenture for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note Debenture as provided in this Article 14.
(g) Upon the conversion of an interest in a Global NoteDebenture, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note Debenture as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes Debentures effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note Debenture and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesDebentures into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes Debentures are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes Debentures as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes Debentures on the corresponding Interest Payment Date notwithstanding the conversion. Notes Debentures surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes Debentures so converted; provided that no such payment shall be required (1) for conversions following if the Company has specified a Redemption Date that is after a Regular Record Date immediately preceding and on or prior to the Maturity corresponding Interest Payment Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on conversions following the Regular Record Date immediately preceding for the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been convertedJune 1, redeemed and/or repurchased, as applicable, following such Regular Record Date2042.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of NotesDebentures, such Person shall no longer be a Holder of such Notes Debentures surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes Debentures and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note Debenture surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02Section 4.02, Section 14.03(b4.04(b) and Section 14.07(a4.08(a), upon conversion of any Note, the Company shall settle its Conversion Obligation by Cash Settlement, Physical Settlement or Combination Settlement, at the Company’s option, in accordance with this Section 4.02.
(i) The Company will initially be deemed to have elected Physical Settlement as the Conversion Settlement Method. The Company may from time to time elect a different Conversion Settlement Method by written notice of such election (the “Settlement Notice”) to Holders, the Trustee and the Conversion Agent. If the Company elects Combination Settlement as the Conversion Settlement Method, the Company shall also specify in such Settlement Notice the dollar amount per $1,000 principal amount of Notes up to which the Company will settle its Conversion Obligation in cash, excluding cash in lieu of fractional shares (the “Cash Amount”); provided that, for conversions with a Conversion Date on or after the date of issuance of a Redemption Notice and on or prior to the second Business Day preceding the relevant Redemption Date, the Cash Amount (if applicable) may not be less than $1,000. Each such election (or deemed election) shall be effective until the Company provides a Settlement Notice to Holders, the Trustee and the Conversion Agent electing a different Conversion Settlement Method or Cash Amount, as applicable; provided, that no such Settlement Notice shall apply to any conversion of Notes unless the Company has delivered such Settlement Notice to Holders, the Trustee and the Conversion Agent on or prior to the Close of Business on the Business Day immediately following the relevant Conversion Date; provided, further, that the Company shall provide notice of the Conversion Settlement Method and, if applicable, Cash Amount (which, for the avoidance of doubt, is initially deemed to be Physical Settlement), and no Settlement Notice shall apply unless given, (x) for conversions with a Conversion Date on or after the date of issuance of a Redemption Notice and on or prior to the second Business Day preceding the relevant Redemption Date, in the relevant Redemption Notice, (y) for all conversions in connection with a given Make-Whole Adjustment Event, no later than the Effective Date of the Make-Whole Adjustment Event and (z) for conversions with a Conversion Date occurring on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date, on or prior to the Close of Business on the second Business Day immediately following preceding such 22nd Scheduled Trading Day.
(ii) The Company shall use the last same Conversion Settlement Method and, if applicable, Cash Amount for all conversions (A) having the same Conversion Date, (B) having a Conversion Date on or after the date of issuance of a Redemption Notice and on or prior to the second Business Day preceding the relevant Redemption Date, (C) in connection with a given Make-Whole Adjustment Event or (D) having a Conversion Date that is on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date. If the Company elects Combination Settlement in accordance with these provisions but omits to elect a Cash Amount, then the Cash Amount will be deemed to be $1,000. The Company will promptly notify the Holders of the relevant Observation PeriodNotes, the Trustee and the Conversion Agent of the occurrence of the Authorized Share Amendment Effective Date.
(iii) Except as set forth in Section 4.02(a)(i), Section 4.04(b) and Section 4.08(a), the Company shall pay or deliversettle its Conversion Obligation in accordance with one of the following “Conversion Settlement Methods,” at the Company’s election:
(A) If “Cash Settlement” applies with respect to any conversion, as the case may bethen, to the converting Holder, in respect of for each $1,000 principal amount of Notes being converted, a “Settlement Amount” the Company shall pay to the converting Holder, on or before the third Business Day following the last VWAP Trading Day of the applicable Observation Period, an amount of cash equal to the sum of the Daily Conversion Values for each VWAP Trading Day during such Observation Period.
(B) If “Physical Settlement” applies with respect to any conversion, then, for each $1,000 principal amount of Notes converted, the Company shall deliver to the converting Holder, on or before the third Business Day following the Conversion Date, (1) a number of shares of Common Stock equal to the Conversion Rate on the Conversion Date and (2) cash in lieu of fractional shares, if any.
(C) If “Combination Settlement” applies with respect to any conversion, then, for each $1,000 principal amount of Notes converted, the Company shall pay and deliver to the converting Holder, on or before the third Business Day following the last VWAP Trading Day of the applicable Observation Period, (1) the sum of the Daily Settlement Amounts for each VWAP Trading Day of the 20 Trading Days during the relevant such Observation Period for such Note, together with cash, if applicable, and (2) cash in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the remindershares, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly Promptly following the last day of the each Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockPeriod (if applicable), the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) or the Daily Conversion Values (if applicable), and the amount of cash payable in lieu of delivering fractional shares of Common StockStock (if applicable). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(eSection 4.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (iA) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (iiB) in the case of a Physical Note Note, (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, Agent and (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and, if different, and the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 IV on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice in accordance with Section 15.03Section 3.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and the Make-Whole Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Subject to Section 4.02(i), a Note shall be deemed to have been converted immediately prior to the close Close of business Business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting HoldersHolders upon settlement of the Conversion Obligation or the Make-Whole Obligation, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or (if applicable) 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 entitled, in satisfaction of book-entry format through the Company’s Conversion ObligationDepositary, with an unrestricted CUSIP and without any restrictive legend.
(d) In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversionsettlement of the Conversion Obligation or the Make-Whole Obligation, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Transfer Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04Section 4.05, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14IV.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian holding such Global Note for the Depositary at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive On the Conversion Settlement Date with respect to any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, the Company shall pay in cash to the Holders of such converted Notes all accrued and unpaid interest will be deemed to be paid first out of the cash paid upon on such conversion.
(i) Notwithstanding the foregoingNotes to, but not including, such Conversion Settlement Date; provided that, if Notes are converted the Conversion Date for any Note occurs after the close of business on a Regular Record Date with respect to an Interest Payment Date and prior to the open of business on the corresponding such Interest Payment Date, Holders the Company shall, in lieu of making such Notes as of payment, pay, on or before such Interest Payment Date, the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes Note on the corresponding such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open Holder of business such Note as of the Close of Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered settlement of the Conversion Obligation shall be treated as a stockholder of record as of the close Close of business Business on the relevant Conversion Date (if the Company elects to satisfy the Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the Conversion Obligation by Combination Settlement). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion settlement of the Notes Conversion Obligation and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last VWAP Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof settlement of the Conversion Obligation shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion.
(a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 60 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k(j) of this Section Section 14.02.
(i) All conversions of Notes for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions of Notes for which the relevant Conversion Date occurs on or after September May 15, 2028 or during a Redemption Period 2028, shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions of Notes for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions of Notes for which the relevant Conversion Date occurs on or after September May 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and Company shall inform converting Holders of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring of Notes for which the relevant Conversion Date occurs (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after September May 15, 2028, no later than the close of business on the Trading Day immediately preceding September May 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, and the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder (other than cash in lieu of any fractional share), if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02herein. By notice The Company shall separately provide to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee) in writing any notice contemplated by this clause (i), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and such conversion shall be irrevocable after such Holder has complied with the procedures of the Depositary in effect at such time unless the Company, in its sole and absolute discretion, agrees to permit such Holder to withdraw such conversion and such withdrawal is reasonably feasible pursuant to the procedures of the Depositary in effect at such time and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice (unless the Company, in its sole and absolute discretion, agrees to permit such Holder to withdraw such notice) to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the Corporate Trust Office or at the office of the Conversion Agent (if other than the Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or at the office of the Conversion AgentAgent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such converting 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversionconversion in $1,000 aggregate principal amount or an integral multiple of $1,000 in excess thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions of Notes following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date and any Redemption Date or Fundamental Change Repurchase Date or Redemption Date, described in each case, as described above, clause (2) and (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(d) and Section 14.07(a13.07(a), upon conversion of any Note, Note on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 25 Trading Days during the relevant Observation Period for such Note, if any, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02.
(i) All conversions for which the relevant Conversion Dates Date occurs (x) on or after September 15December 1, 2028 or 2025 and (y) during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15December 1, 20282025, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to deliver a notice to settle all or a portion of its the Conversion Obligation for the Notes in excess of the principal principle portion of the Notes being converted in cash, the Company will deliver a notice cash (the “Cash Percentage Settlement Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Redemption Period, in such Redemption Notice, Notice or (y) on or after September 15December 1, 20282025, no later than the close of business on the Scheduled Trading Day immediately preceding September 15December 1, 20282025) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionconverted.
(iv) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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.
(v) Prior to close of business on the Scheduled Trading Day immediately preceding December 1, 2025 (other than during a Redemption Period), the Company may, at its election, by notice ( an “Irrevocable Election Notice”) to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with provisions of this Indenture, irrevocably elect to settle its Conversion Obligation with respect to all conversions subsequent to the date of the Irrevocable Election Notice through a Cash Percentage of 0 percent for each $1,000 principal amount of Notes; provided, however, that any irrevocable election notice given during a Redemption Period shall only apply to Notes submitted for conversion subsequent to the applicable Redemption Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 XIII on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0314.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b13.03(c) and Section 14.07(a13.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp stamp, or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14XIII.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestSpecial Interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished extinguished, or forfeited. Upon a conversion of Notes, any accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular close on business on the Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately succeeding following the corresponding Special Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Special Interest Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding following the corresponding Special Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Special Interest Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (3) above, or any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in the immediately preceding sentence (if and to the extent that Special Interest is payable on the Maturity Date) shall receive the full interest Special Interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or or repurchased, as applicable, applicable following such Regular Special Interest Record Date.
(ji) The Subject to Section 13.13, the Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
(k) Any applicable withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase or maturity of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder, those withholding taxes may be set off against payments of cash or Common Stock, if any, payable on the Notes to such Holder.
Appears in 1 contract
Samples: Indenture (Dropbox, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15, 2028 or during the date of the Company’s issuance of a Notice of Redemption Period with respect to any Notes selected for redemption in respect of such Notice of Redemption and prior to the close of business on the second Business Day before the related Redemption Date shall be settled using the same forms Settlement Method, and amounts of considerationall conversions for which the relevant Conversion Date occurs on or after November 1, 2028, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the date of the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the close of business on the second Business Day before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, and any conversions for which the relevant Conversion Date occurs on or after September 15November 1, 2028, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) (A) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the close of business on the second Business Day before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, or (y) for which the relevant Conversion Date occurs on or after September 15November 1, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the close of business on the second Business Day before the related Redemption Date with respect to any Notes selected for redemption in respect of such Notice of Redemption, in such Notice of Redemption Notice(and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (y) on or after September 15November 1, 2028, no later than the close of business on the Trading Day immediately preceding September 15November 1, 2028) 2028 (in each case, the “Cash Percentage Settlement Method Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence with respect to any conversion, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method with respect to settlesuch conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the Company relevant Settlement Notice shall settle, its Conversion Obligation by paying cash in respect of indicate the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each Specified Dollar Amount per $1,000 principal amount of Notes, including (at . If the Company’s option) Company delivers a specified minimum Cash Percentage 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 Notes with an ability to continue to set be converted in such Settlement Notice, the Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion$1,000.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (BridgeBio Pharma, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, or cause to be paid or delivered, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”), or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September February 15, 2028 or 2025, and all conversions occurring during a Redemption Period Period, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except Prior to February 15, 2025, except for any conversions for which the relevant Conversion Date occurs that occur during a Redemption Period Period, and any conversions for which subject to the relevant Conversion Date occurs on or after September 15, 2028last paragraph of Section 14.02(a)(iii), the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or one of the periods described in the fifth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) ), and the Trustee, in turn, shall deliver, upon the Company’s written request (which request the Company shall make), such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such the related Redemption Notice, Notice or (y) on or after September February 15, 20282025, no later than the close of business on the Trading Day immediately preceding September February 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2025). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000. The Company may, by paying cash in respect notice to the Holders of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”)Notes, the Trustee and the Conversion Agent (if other than the Trustee)) prior to February 15, 2025, irrevocably fix the Settlement Method to any Settlement Method that the Company mayis then permitted to elect, prior which shall apply to September 15, 2028, at its option irrevocably elect to settle its all conversions with a Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to Date that is on or after the date of the Irrevocable Election Notice using the Cash Percentage specified (in Company sends such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Noticenotice. Concurrently with providing the Irrevocable Election Notice notice to the Holders, Holders of the Trustee and Notes an election to irrevocably fix the Conversion Agent (if other than the Trustee)Settlement Method, the Company shall either post its irrevocable election on its website or disclose the same in promptly issue a current report on Form 8-K (or any successor form) press release announcing that is filed with the Commission. If the Company has elected to irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set fix the Cash Percentage per $1,000 principal amount of Notes at or above Settlement Method. Notwithstanding the specified minimum Cash Percentage set forth in foregoing, no such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will shall affect any Cash Percentage Settlement Method theretofore elected (or deemed to be elected) with respect to any conversionNote pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, will shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k10.01(l). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (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 a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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 The Company shall send such determination and the calculation thereof in reasonable detail or in such detail as requested by the Depositary promptly after such determination (and in any event within one Business Day following the last day of the Observation Period) of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify to the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Cantel Medical Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock ADSs in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028 or during a Redemption Period 2024 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 20282024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the date of issuance of a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than Notice with respect to the Notes and prior to the close of business on the Trading second Business Day immediately preceding September 15the related Redemption Date, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Redemption Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”or on or after June 1, 2024, no later than June 1, 2024). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal portion amount of Notes shall be equal to US$1,000. Such Settlement Notice shall specify the converted Notes relevant Settlement Method and delivering shares in the case of Common Stock in respect an election of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”)Combination Settlement, the Trustee and relevant Settlement Notice shall indicate the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $Specified Dollar Amount per US$1,000 principal amount of Notes, including (at . If the Company’s option) Company delivers a specified minimum Cash Percentage Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $US$1,000 principal amount of Notes with an ability to continue to set in such Settlement Notice, the Cash Percentage Specified Dollar Amount per $US$1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionUS$1,000.
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (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 US$1,000 principal amount of Notes being converted a number of ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date;
(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 US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ), and if required, pay all transfer or similar taxes, if any and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and if required, pay all transfer or similar taxes, if any. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion conversion, by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock ADSs are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or (if applicable) 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 ADSs to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such shares ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver Company shall be responsible for the certificates representing ADS Depositary’s fees for the shares issuance of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and ADSs, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds an amount in U.S. dollars equal to the amount of interest payable on the Notes so convertedconverted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; Date (3) or, if the Company has specified such Interest Payment Date is not a Redemption Date that is after a Regular Record Date and on or prior to Business Day, the second Scheduled Trading day Business Day immediately succeeding the corresponding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders the Holder of record the Notes on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall will receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash cash, regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered ADSs shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares ADSs that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Sea LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September the Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Business Day immediately preceding the related Redemption Date, all conversions for which the relevant Conversion Date occurs on or after October 15, 2028 or during a Redemption Period and all conversions for which the Company has irrevocably elected to fix the Settlement Method to Physical Settlement pursuant to Section 13.01(b)(ii) shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes and on or prior to the second Business Day immediately preceding the related Redemption Date, any conversions for which the relevant Conversion Date occurs on or after September October 15, 20282028 and any conversions for which the Company has irrevocably elected to fix the Settlement Method to Physical Settlement pursuant to Section 13.01(b)(ii), the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall inform the Trustee and, through the Trustee, shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during on or after the date of issuance of a Redemption PeriodNotice with respect to the Notes and on or before the second Business Day immediately preceding the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September October 15, 2028, no later than the close of business on the Trading Day immediately preceding September October 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If With respect to any conversion, if the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and then the Company shall be deemed to have elected the Default Settlement Method with respect to settle, such conversion. If the Company shall settlechooses Combination Settlement, it will specify the applicable Specified Dollar Amount. However, if the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) but does not indicate a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set in such Settlement Notice, the Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes at shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or above specify the specified minimum Cash Percentage applicable Specified Dollar Amount will not constitute a Default under this Indenture. Notwithstanding anything to the contrary herein, if the Company calls any Notes for redemption pursuant to Article 15 and the related Redemption Date is on or after October 15, 2028, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the second Business Day immediately preceding the such Redemption Date shall be set forth in such Irrevocable Election NoticeRedemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after October 15, 2028. Concurrently with providing The Company may, from time to time, change the Irrevocable Election Notice Default Settlement Method prior to October 15, 2028 by sending notice of the new Default Settlement Method to the Holders, Holders (with a copy to the Trustee and the Conversion Agent Agent); and the Company may, by notice to the Holders prior to October 15, 2028 (if other than with a copy to the TrusteeTrustee and the Conversion Agent), elect to irrevocably fix the Settlement Method or to irrevocably elect Combination Settlement and eliminate a Specified Dollar Amount or range of Specified Dollar Amounts, provided the Company is then otherwise permitted to elect the applicable Settlement Method(s). If the Company makes such an irrevocable election, then such election shall apply to all conversions of Notes with a Conversion Date that is on or after the date the Company sends such notice. In addition, if the Company irrevocably elects Combination Settlement and eliminates a Specified Dollar Amount or range of Specified Dollar Amounts, then the Company shall, if needed, simultaneously change the Default Settlement Method to Combination Settlement with a Specified Dollar Amount that is consistent with such irrevocable election. However, in all cases, no such irrevocable election or change of Default Settlement Method, as the case may be, will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Indenture. For the avoidance of doubt, any such irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(d) (but the Company may nonetheless choose to execute such an amendment at its option). If the Company changes the Default Settlement Method, if the Company irrevocably fixes the Settlement Method or if the Company irrevocably elects Combination Settlement and eliminates a Specified Dollar Amount or range of Specified Dollar Amounts, in each case, pursuant to this paragraph, then promptly (but in any event within two (2) Business Days of providing notice to Holders of such change or election) the Company shall either post its the Default Settlement Method or such irrevocable election election, as the case may be, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with with, or furnished to, the Commission. If .
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if Physical Settlement applies, the Company irrevocably elects a specified minimum Cash Percentage per shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes with an ability being converted a number of shares of Common Stock equal to continue the Conversion Rate in effect on the Conversion Date (provided that the Company shall deliver cash in lieu of fractional shares as described in Section 13.02(j));
(B) if Cash Settlement applies, the Company shall pay to set the Cash Percentage per converting Holder in respect of each $1,000 principal amount of Notes at or above being converted cash in an amount equal to the specified minimum Cash Percentage set forth in such Irrevocable Election Noticesum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Conversion Reference Period; and
(C) if Combination Settlement applies, the Company shallshall pay or deliver, after as the date case may be, in respect of such electioneach $1,000 principal amount of Notes being converted, inform Holders converting their Notes a Settlement Amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if Daily Settlement Amounts for each of the Company does not timely notify Holders, such Cash Percentage will be 40 consecutive VWAP Trading Days during the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on related Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionReference Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes as set forth in Section 13.02(d) and Section 13.02(e) and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b13.02(h) and Section 14.07(a), the Company shall pay or deliver, as (ii) in the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, comply with the Trustee, or the Custodian at the direction procedures of the Trustee, shall make a notation on such Global Note as to the reduction Depositary in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued effect at that time and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.comply with
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 30 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15April 1, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15April 1, 20282023, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or in applicable period, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Company shall inform converting Holders through the Trustee and of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15April 1, 20282023, no later than the close of business on the Trading Day immediately preceding September 15April 1, 20282023) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionherein.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and (4e) and (5) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in subclause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Palo Alto Networks Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k(j) of this Section Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Dates Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September May 15, 2028 or during a Redemption Period 2028, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September May 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or (y) any conversions for which the relevant Conversion Date occurs on or after September May 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period, in such Redemption Noticethe related Notice of Redemption, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after September May 15, 2028, no later than the close of business on the Trading Day immediately preceding September May 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does not make timely notify Holders of such an election at or of a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) 0% with respect to any such conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) and the Daily Conversion Values 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) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record of such shares of Common Stock as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Tetra Tech Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September December 15, 2028 or during a Redemption Period 2026 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September December 15, 20282026, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date, or for which the relevant Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) occurs on or after September December 15, 2028)2026, the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September December 15, 20282026, no later than the close of business on the Trading Day immediately preceding September December 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)2026. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence with respect to any conversion, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method with respect to settlesuch conversion. 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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (BridgeBio Pharma, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions of Notes for which the relevant Conversion Dates Date occurs on or after September May 15, 2028 or during a Redemption Period 2026, shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions of Notes for which the relevant Conversion Date occurs on or after September May 15, 20282026, the Company shall use the same forms and amounts of consideration for all conversions occurring on of Notes with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on of Notes with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) of Notes for which the relevant Conversion Date occurs on or after September May 15, 20282026, no later than the close of business on the Trading Day immediately preceding September May 15, 20282026) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder (other than cash in lieu of any fractional share), if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionherein. For the avoidance of doubt, such an irrevocable electionthe Company’s failure to make a timely election of the Cash Percentage, if madeas described above, will be effective without the need to amend not constitute a Default under this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionIndenture.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.in
Appears in 1 contract
Samples: Indenture (Centerpoint Energy Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b13.03(b) and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash up to the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, cash, shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (such elected method, the “Settlement Method”), at the Company’s election, in respect of the remainder, if any, of the Company’s conversion obligation in excess of the aggregate principal amount of the Notes being converted.
(i) All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after December 15, 2029, shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after December 15, 2029, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. The Company may, at any time prior to December 15, 2029, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), irrevocably elect one settlement method or irrevocably eliminate one or more Settlement Methods or irrevocably elect a Cash Amount (as defined below).
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to settle all or a portion of the Company’s conversion obligation in excess of the principal portion of the notes being converted in cash, it will (A) deliver a written 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 shall deliver such Settlement Notice to the Trustee, the Conversion Agent and converting Holders no later than the close of business on the first VWAP Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and before the related Redemption Date, in such Redemption Notice or (y) on or after December 15, 2029, no later than December 15, 2029) and (B) specify the maximum amount of the consideration due upon conversion in excess of the principal portion of the Notes being converted to be satisfied in cash (excluding cash in lieu of issuing any fractional share) as a fixed dollar amount (the “Cash Amount” and, the percentage of the amount of the consideration due upon conversion in excess of the principal portion of the Notes being converted that is accounted for by the Cash Amount, the “Cash Percentage”). With respect to any conversion, if the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the Company shall be deemed to have elected to pay cash up to the aggregate principal amount of the Notes to be converted and deliver shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 , in respect of the remainder of the conversion obligation in excess of the aggregate principal amount of the Notes to be converted. Notwithstanding anything to the contrary herein, if the Company calls any Notes for redemption pursuant to Article 16 and the related Redemption Date is on or after December 15, 2029, then the Settlement Method that shall apply to all conversions with a Conversion Date that occurs on or after the date the Company sends the related Redemption Notice and on or before the Scheduled Trading Day immediately preceding such Redemption Date shall be set forth in such Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 15, 2029.
(iv) Upon conversion, the Company will pay or deliver, as the case may be, to the converting Holder in respect of each Note converted a settlement amount (the “Settlement Amount” ”) equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive VWAP Trading Days during the relevant Observation Conversion Reference Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions 13.02. If more than one note is surrendered for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using conversion at any one time by the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028holder, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any conversion obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business notes shall be computed on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess basis of the aggregate principal portion amount of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders notes (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent or specified portions thereof to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Noticeextent permitted thereby) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionso surrendered.
(ivv) The Daily Settlement Amounts, the Daily Net 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 Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Xerox Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock Share in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15, 2028 or during a Redemption Period 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after September 15, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15, 20282025, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2025). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Concurrently At any time prior to September 15, 2025, the Company may irrevocably elect to satisfy its Conversion Obligation with providing respect to the Irrevocable Election Notice Notes to be converted after the date of such election by delivering cash up to the aggregate principal amount of Notes to be converted, and Common Shares, cash or a combination thereof in respect of the remainder, if any, of its Conversion Obligation. Upon making such election, the Company shall promptly (x) provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in ) and (y) issue a current report on Form 8-K (or any successor form) press release or publish on its website to announce that is filed with the Commission. If the Company irrevocably has made such an election.
(iv) The cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects a specified minimum Cash Percentage per 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 Notes with an ability being converted a number of Common Shares equal to continue the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes at being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 100 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or above the specified minimum Cash Percentage set forth is deemed to have elected) to satisfy its Conversion Obligation in respect of such Irrevocable Election Noticeconversion by Combination Settlement, the Company shallshall pay or deliver, after as the date case may be, in respect of such electioneach $1,000 principal amount of Notes being converted, inform Holders converting their Notes a Settlement Amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if Daily Settlement Amounts for each of the Company does not timely notify Holders, such Cash Percentage will be 100 consecutive Trading Days during the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockShare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockShares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the designated corporate trust office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the designated corporate trust office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, pursuant to Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any shares of Common Stock Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 Shares to which such Holder shall be entitled entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered Shares shall be issuable upon conversion is registered shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Invacare Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, 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 Notes being converted, (x) a “Settlement Amount” number of shares of Common Stock equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteConversion Rate, together with casha cash payment, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
14.02 (the “Base Conversion Amount”) and (y) for conversions where an Early Conversion Payment is due upon conversion, the Early Conversion Settlement Amount, on the third Scheduled Trading Day immediately following the relevant Conversion Date, unless (i) All conversions for such Conversion Date occurs following the Regular Record Date immediately preceding the Maturity Date, in which case the relevant Company shall make such delivery (and payment, if applicable) of the Base Conversion Dates occurs Amount on or after September 15the Maturity Date, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for a Make-Whole Adjustment Event described in clause (b) of the definition of Fundamental Change occurs in which the Reference Property following such Make-Whole Adjustment Event is composed entirely of cash, in which case the Company shall make payment of the Make-Whole Cash Settlement Amount on the tenth Business Day following the Conversion Date or (iii) the Company elects Physical Settlement of the Early Conversion Payment, in which case the Company shall deliver the Base Conversion Amount and the Early Conversion Settlement Amount on the third Scheduled Trading Day following the last Trading Day of the applicable Averaging Period. In respect of any conversions for which the relevant an Early Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028Payment is due, the Company Company, through the Trustee, shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, Holders electing Cash Settlement or Physical Settlement of the Trustee and the Early Conversion Agent (if other than the Trustee) Settlement Amount no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)Date. If the Company does not make notify such an election at or Holders prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Physical Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the such Early Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationAmount.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the The Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar other governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any the shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full upon conversion rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the principal amount of the Notes so convertedconverted on such Interest Payment Date; provided provided, however, that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (42) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, ; or (3) for conversions following the avoidance close of doubt, all Holders of record business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, . The Company shall receive not be required to convert Notes not accompanied by funds equal to the full amount of interest payment due payable on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their such Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Daterequired by this subsection (h).
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes (including upon Physical Settlement of any applicable Early Conversion Payment) and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion with respect to each of the Base Conversion Amount and, if applicable, the Early Conversion Settlement Amount based on the Daily VWAP Closing Sale Price of the Common Stock on the last Trading Day relevant Conversion Date. For purposes of determining cash payments in lieu of fractional shares pursuant to this subjection (j), the principal amount of Notes being converted by the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that Holder shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashaggregated.
Appears in 1 contract
Samples: Indenture (Solazyme Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteClass A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Class A Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Class A Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15May 1, 2028 or during a Redemption Period 2026 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15May 1, 20282026, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates. By written notice to the Holders, the Company may, prior to May 1, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) for which the relevant Conversion Date occurs on or after September 15May 1, 20282026, no later than the close of business on the Business Day immediately preceding May 1, 2026), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15May 1, 20282026, no later than the close of business on the Trading Business Day immediately preceding September 15May 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2026). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) The cash, shares of Class A Common Stock or combination of cash and shares of Class A Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Cash Percentage per Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes at or above being converted a number of shares of Class A Common Stock equal to the specified minimum Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Class A Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Class A Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after May 1, 2026, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Class A Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 Class A Common Stock to which such Holder shall be entitled entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue any issuance of any shares of Class A Common Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Class A Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow in the fifth sentence of this paragraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Class A Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Class A Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Class A Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Alteryx, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. Prior to July 1, 2019, the Company may irrevocably elect, in its sole discretion without the consent of the Holders, Combination Settlement with a Specified Dollar Amount of $1,000 (an “Irrevocable Election”) for all conversions subsequent to the date of such election. If the Company makes such an election in its sole discretion, it shall notify each Holder, the Trustee and the Paying Agent and the Conversion Agent (if other than the Trustee) in writing.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15July 1, 2028 or 2019 and during a Redemption Period shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs occurring on or after July 1, 2019 and any conversions that occur during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028Period, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but but, unless the Company shall have made an Irrevocable Election, the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (xA) on or after July 1, 2019 or (B) during a Redemption Period or (y) on or after September 15Period, 2028as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, Notice or (y) on or after September 15July 1, 20282019, no later than the close of business on the Trading Day immediately preceding September 151, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2019). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and (4e) and (5) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, Notes into a combination of cash and shares of Common Stock accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding Day following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Isis Pharmaceuticals Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Except as provided in Section 14.02, Section 14.03(b14.03(a) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Dates Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September February 15, 2028 or during a Redemption Period 2026, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September February 15, 20282026, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or (y) any conversions for which the relevant Conversion Date occurs on or after September February 15, 20282026), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent of such election (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period, in such the related Notice of Redemption Notice, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after September February 15, 20282026, no later than the close of business on the Trading Day immediately preceding September February 15, 20282026) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) 0% with respect to any such conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) and the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date or Redemption Date, described in each caseclause (3) of the immediately preceding sentence, as described aboveapplicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company This Note will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered (1) a duly completed and executed irrevocable written notice to the requirements set forth Registrar in subsection the form attached hereto as Exhibit A (bthe “Conversion Notice”), (2) abovethe Note Certificate to the Registrar for cancellation or notation of the outstanding principal amount of this Note after partial conversion, and (3) the ADS conversion documents pursuant to the procedures of the Depositary in effect at that time to the Registrar and the Depositary. Except as set forth in Section 14.03(bOn or before the third (3rd) Business Day following the date of receipt of a Conversion Notice, the Registrar will transmit by facsimile or other electronic means a confirmation of receipt of such Conversion Notice to the Holder (the “Receipt Confirmation” and Section 14.07(asuch date of transmission, the “Receipt Confirmation Date”). Within five (5) Business Days after the relevant Receipt Confirmation Date, the Company shall pay or deliver, as will (i) take all actions and execute all documents and procure that the case may be, Depositary take all actions and execute all documents necessary to effect the consideration due in respect issuance of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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 ADSs to which such the Holder shall will be entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) cause entries on the Company’s register of members to be entered with respect to the Ordinary Shares represented by such ADSs in the name of the Depositary for the purpose of such deposit and (iii) subject to Section 3.5(c), cancel this Note Certificate. No Conversion ObligationNotice may be delivered and this Note Certificate may not be surrendered by the Holder for conversion thereof if the Holder has also delivered a Relevant Event Put Exercise Notice to the Registrar in respect of this Note and not validly withdrawn such Relevant Event Put Exercise Notice in accordance with Section 5.4. A single certificate will be issued in respect of all ADSs issued on conversion of this Note subject of the same Conversion Notice.
(db) The Company will not issue any Fractional ADS upon conversion of this Note and will instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the VWAP of the ADSs on the relevant Conversion Date.
(c) In case any the event the Holder presents this Note shall be surrendered Certificate to the Registrar pursuant to Section 3.5(a) for partial conversion, the Company shall execute and Registrar will record the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate outstanding principal amount equal to the unconverted portion of the surrendered Note, presented Note Certificate on the Register and the “Schedule of Outstanding Principal Amount of this Note in respect of which this Note Certificate is issued” attached to this Note Certificate and update the Register to reflect such outstanding principal amount. Such recoding will be made without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ed) If a the Holder submits a this Note Certificate to the Registrar for conversion, the Company shall will pay any documentary, stamp or similar issue or transfer tax due on the issue delivery of any shares the ADSs upon such conversion of Common Stock upon conversionthis Note (or the issuance of the underlying Ordinary Shares), unless the tax is due because the Holder requests such shares ADSs (or such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall will pay that tax. The Conversion Agent may refuse to deliver Company will pay the certificates representing relevant Depositary’s fees for issuance of the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentenceADSs.
(fe) Except as provided in Section 14.04, no adjustment shall The number of ADSs to be made for dividends issued on any shares of Common Stock issued upon the conversion of any a Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in will be determined by dividing the principal amount represented thereby. The Company of Note to be converted by the Conversion Price (in the event of Fractional ADS, cash in lieu of such Fractional ADS shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbe paid pursuant to Section 3.5(b)). The Company’s settlement of the full Conversion Obligation shall each conversion pursuant to this Article 3 will be deemed to satisfy in full its obligation to pay the principal amount of the this Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversionconverted.
(if) Notwithstanding If the foregoing, if Notes are converted record date for the payment of any dividend or other distribution in respect of the Original Shares is on or after the close Conversion Date in respect of business on a Regular Record Date and prior this Note, but before the issuance of the ADS to the open of business on Holder, the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date Company will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date calculate and directly pay to the open of business on converting Holder an amount in U.S. dollars (the immediately following Interest Payment Date must be accompanied by funds “Equivalent Amount”) equal to the amount Fair Market Value of interest payable such dividend or other distribution to which the Holder would have been entitled had the Depositary on that record date been such a shareholder of record of Original Shares and will make the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the same time as it makes payment of conversion with respect to such Note. Thereforethe dividend or other distribution, for the avoidance of doubtor as soon as practicable thereafter, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Datebut, in each caseany event, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Datenot later than seven (7) Business Days thereafter.
(jg) The Person Except as provided in whose name the certificate Section 3.5(f), no adjustment will be made for dividends on any shares of Common Stock ADSs delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this Article 3.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Convertible Note Exchange Agreement (NaaS Technology Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k(j) of this Section Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Dates Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September 15August 1, 2028 or during a Redemption Period 2028, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September 15August 1, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or (y) any conversions for which the relevant Conversion Date occurs on or after September 15August 1, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period, in such the related Notice of Redemption Notice, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after September 15August 1, 2028, no later than the close of business on the Trading Day immediately preceding September 15August 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) 0% with respect to any such conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) and the Daily Conversion Values 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) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date or Redemption Date, described in each caseclause (3) of the immediately preceding sentence, as described aboveapplicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Semtech Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or and, if applicable, deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 50 Trading Days during the relevant Observation Period for such NotePeriod, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15, 2028 or during a Redemption Period 2027 shall be settled using the same forms and amounts of consideration.
(ii) Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 20282027, the Company shall use the same forms and amounts of consideration Cash Percentage for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Cash Percentage with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion amount of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Trustee and Company shall inform converting Holders in writing of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15, 20282027, no later than the close of business on the Trading Day immediately preceding September 15, 20282027) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and Percentage, the Company shall be deemed to have elected to settle, a Cash Percentage of 0% and the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this herein (subject to Section 14.0214.02(j)). By notice At the time that the Company informs the Holders of any election pursuant to Holders (the “Irrevocable Election Notice”)second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion Agent (if other than the Trustee). For the avoidance of doubt, the Company may, prior failure to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) deliver a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Settlement Notice to the Holders, the Trustee and or the Conversion Agent (if other than the Trustee), ) shall not affect the right of the Company shall either post its irrevocable to elect a Cash Percentage or the validity or sufficiency of any such election on its website or disclose the same made in a current report on Form 8-K (or any successor form) that is filed accordance with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionsecond and third immediately preceding sentences.
(ivii) The For any conversion of Notes, the Daily Settlement Amounts, the Daily Net Settlement Amounts and Amounts, the Daily Conversion Values and the Settlement Amount shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion ValuesValues and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or and deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and and, upon Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder Xxxxxx in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Date or any Fundamental Change Repurchase Date or Redemption Datedescribed in clause (2) above shall, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other the applicable Interest Payment Date Date, as the case may be, in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Evergy, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September October 15, 2028 or during a Redemption Period 2023, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for For any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September prior to October 15, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) (A) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) for which the relevant Conversion Date occurs on or after September October 15, 20282023), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September October 15, 20282023, no later than the close of business on the Trading Day immediately preceding September October 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for Settlement or Physical Settlement with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth to be converted in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will shall be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect $1,000. Notwithstanding anything to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend contrary in this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockIndenture, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily be permitted to irrevocably elect Physical Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled Certain Distributions Notification as set forth in Section 14.02(h14.01(b)(ii) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures Holders of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name Certain Distributions Notification until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Certain Distributions Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Period End Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Docusign, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02.63
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September March 15, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September March 15, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, Holders (with a copy to the Trustee and the Conversion Agent (if other than the TrusteeAgent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) for which the relevant Conversion Date occurs during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September March 15, 20282023 until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September March 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinetimely elect a Settlement Method, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent (if other than the Trustee), ) shall be computed by the Company may, prior as follows:
(A) if the Company elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, cause to be delivered to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a “Settlement Amount” number of ADSs equal to the sum Conversion Rate in effect immediately prior to the close of the Daily Settlement Amounts for each of the 20 Trading Days during business on the relevant Observation Period for such NoteConversion Date, together with casha cash payment, if applicable, in lieu of delivering any fractional share ADSs (“Fractional ADSs”) (assuming delivery of Common Stock the maximum number of ADSs due upon conversion that do not represent a fractional ADS) in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading third Business Day immediately following the relevant Conversion Date; provided that, if a Conversion Date occurs (or, in i) following the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day Regular Record Date immediately preceding September 15the Maturity Date, 2028subject to clause (ii) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinebelow, the Company shall no longer cause such delivery (and payment, if applicable) to be made on the Maturity Date or (ii) after the Ordinary Shares have been replaced by the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settleReference Property consisting solely of cash in accordance with Section 14.07, the Company shall settle, its Conversion Obligation by paying cash cause the consideration due in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice conversion to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent be paid to the date of converting Holder on the Irrevocable Election Notice using tenth Business Day immediately following the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the related Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionDate. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify neither the Trustee and the Conversion nor any Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 any responsibility for to deliver ADSs upon conversion of any such determinationNote to any person or deal with cash payments in relation to conversions.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice Notice of Conversion to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion AgentAgent and the Trustee, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered and no Notes may be surrendered for conversion by a Holder for conversion thereof if such Xxxxxx Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with Section 15.03. A Notice of Conversion shall be deposited at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. 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 the Conversion Agent or 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 ADSs to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares the ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Ordinary Shares), unless the tax is due because the Holder requests any ADSs (or such shares Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent Company may refuse to deliver the certificates representing the shares of Common Stock ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay and/or indemnify each Holder and beneficial owners of Notes and/or ADSs issuable upon conversion of the Notes for applicable fees and expenses payable to, or withheld by, the ADS Depositary (including, for the avoidance of doubt, by means of a reduction in any amounts or property payable or deliverable in respect of any ADSs or in the value of deposited amounts or property represented by any ADSs) for the issuance of all ADSs deliverable upon conversion (including, with respect to any ADSs subject to restricted CUSIP and/or restrictive legends upon issuance, any of the foregoing with respect to the removal of any such restrictions from such ADSs).
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued ADSs delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock ADSs delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable Fractional ADS deliverable upon conversion based on the Daily VWAP Last Reported Sale Price of the ADSs on the last relevant Conversion Date (or if such Conversion Date is not a Trading Day Day, the immediately preceding Trading Day).
(k) In accordance with the Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued ADSs upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for the relevant Observation Period such ADSs, and any fractional shares remaining after such computation other information or documentation and shall be paid comply with the Deposit Agreement and the Restricted Deposit Agreement (as the case may be), in casheach case, as required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Samples: Indenture (Qudian Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ki) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (i) of this Section 14.02 (“Combination Settlement”), at its election, subject to the Conversion Share Cap pursuant, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15May 1, 2028 or during a Redemption Period 2024 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period on or after May 1, 2024 and for any conversions for which the relevant Conversion Date occurs on or after September 15, 2028the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, Holders (with a copy to the Trustee and the Conversion Agent (if other than the TrusteeAgent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xA) during after the date of issuance of a Notice of Redemption Periodand prior to the related Redemption Date, in such Notice of Redemption Notice, or (yB) on during the 57
(iv) The cash, shares of Common Stock or after September 15, 2028, no later than the close combination of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), cash and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent (if other than the Trustee), ) shall be computed by the Company may, prior as follows: (A) if the Company elects (or is deemed to September 15, 2028, at its option irrevocably elect have elected) to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, including subject to the Conversion Share Cap; (at B) if the Company’s option) a specified minimum Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and (C) if the Company elects to set satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holderssum of the Daily Settlement Amounts for each of the 50 consecutive Trading Days during the related Observation Period, the Trustee and subject to the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionShare Cap.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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. 58
(vi) Unless and until the Company obtains stockholder approval to issue shares of Common Stock in excess of the Conversion Share Cap upon conversion of the Notes in accordance with the listing standards of the Nasdaq Global Select Market, (x) the Company may not elect Physical Settlement if the number of shares of Common Stock the Company would be required to deliver would exceed the Conversion Share Cap and (ii) if the Company elects Combination Settlement, it must select a Specified Dollar Amount per $1,000 principal amount of Notes such that the number of shares of Common Stock the Company would be required to deliver will not exceed the Conversion Share Cap. The Conversion Share Cap will be adjusted at the same time and in the same manner as the applicable Conversion Rate. The Conversion Share Cap will apply until the elimination of the Conversion Share Cap is approved by the Company’s stockholders.
(vii) Notwithstanding anything contained to the contrary in this Indenture or the Notes, no Holder shall have the right to convert their Notes to the extent, and only to the extent, that such conversion would result, were the Company to elect any Settlement Method other than Cash Settlement, in such Holder (or any other Person having beneficial ownership of the shares of the Common stock to be issued upon such conversion or any group of which such Holder or such other Person is a member) beneficially owning in excess of 9.99% of the outstanding shares of the Common Stock immediately following such conversion when they did not do so immediately prior to such conversion.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to any interest payable on the next Interest Payment Date Date, to which such Holder is not entitled entitled, as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion AgentAgent and the Trustee, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date Date, to which such Holder is not entitled entitled, as set forth in Section 14.02(h)) and (5) if such tax is due because such Holder requests such shares of Common Stock be issued in a name other than such Holder’s name, pay all transfer, stamp or similar taxes. The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.59
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth provided in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on no later than the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or no later than the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.. 60
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, any accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to for the open payment of business on the corresponding Interest Payment Dateinterest, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity DateJuly 15, 2024; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of for any interest constituting Defaulted Amounts, if and to the extent any such Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity DateJuly 15, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, 2024 shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Eagle Bulk Shipping Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs (x) on or after September 15February 1, 2028 2023 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15February 1, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15February 1, 20282023), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, Holders and the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15February 1, 20282023, no later than the close of business on the Trading Business Day immediately preceding September 15February 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion on the relevant conversion date or during such the relevant period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in respect such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02shall be deemed to be $1,000. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee)Holders, the Company may, prior to September 15February 1, 20282023, at its option option, irrevocably elect to settle satisfy its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent with respect to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) Notes through Combination Settlement with a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per of $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to for all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionnotice.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (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 Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or, in the case of any other Settlement Method, on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date described in clause (2) of the immediately preceding sentence or any Redemption DateDate described in clause (3) of the immediately preceding sentence, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed converted and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Rapid7, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal (x) cash up to the sum aggregate principal amount of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share Notes being converted and (y) either cash or shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in accordance with subsection (k) respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of the Notes being converted, as set forth in this Section 14.0214.02(a)(iii) and 14.02(j).
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15January 1, 2028 2026, and all conversions of Notes called for redemption (or deemed called for redemption) for which the relevant Conversion Date occurs during a Redemption Period Period, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Notes called for redemption (or deemed called for redemption) for which the relevant Conversion Date occurs during a Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282026, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates. In addition, if the Company calls any Notes for redemption (or are deemed to call notes for Redemption) pursuant to Article 16, and the related Redemption Date is on or after January 1, 2026, then the forms and amounts of consideration during the Redemption Period must be the same forms and amounts of consideration that apply to all conversions with a Conversion Date that occurs on or after January 1, 2026.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) for which the relevant Conversion Date occurs during a Redemption Period Period, or (y) for which the relevant Conversion Date occurs on or after September 15January 1, 20282026), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver shall provide a notice (the “Cash Percentage Settlement Notice”) to Holders of such election in respect of such Conversion Date (or such period, as the case may be) ), and the Company shall deliver such Settlement Notice to converting HoldersHolders in writing (or if the Notes are then in global form through the applicable procedures of the Depositary), the Trustee and the Conversion Agent (if other than the Trustee) of such election, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during a Redemption Period, in such the applicable Notice of Redemption Notice, or (y) on or after September 15January 1, 20282026, no later than the close of business on the Trading Business Day immediately preceding September 15January 1, 20282026) (in each case, the “Cash Percentage Settlement Method Election DeadlineDate”), and the Company . Such Settlement Notice shall indicate in such Cash Percentage Notice the percentage of the consideration due each share of Common Stock issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the Notes being converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the Company’s Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere converted.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in this Section 14.02. By notice to Holders respect of any conversion of Notes (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent (if other than the Trustee), ) shall be computed as follows: the Company mayshall pay or deliver, prior to September 15as the case may be, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the amount of cash payable in lieu of delivering fractional shares of Common StockStock or pursuant to dissenter rights. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documentsdocuments in a form reasonably satisfactory to the Conversion Agent), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents in a form reasonably satisfactory to the Conversion Agent and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowin this Section 14.02(h), and the Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, Notes accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or if the Company does not deliver a Cash Percentage Settlement Notice at or prior to the applicable Cash Percentage Settlement Method Election DeadlineDate, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Jetblue Airways Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) 14.02 and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15, 2028 or during the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period and any conversions for which with respect to the relevant Conversion Date occurs on or after September 15, 2028Notes but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption Period or (y) on or after September 15, 2028with respect to the Notes and prior to the related Redemption Date), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a notice (of the “Cash Percentage Notice”) of such election relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) in writing (the “Settlement Notice”) to converting Holders, Holders (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close Notice of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”Redemption). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for Settlement or Physical Settlement with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date or, including in the case of a Company Conversion, the Company Conversion Notice Date;
(at B) if the Company’s option) a specified minimum Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the Conversion Value; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, the Trustee Combination Settlement Amount.
(v) The Combination Settlement Amount (if applicable) and the Conversion Agent Value (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor formapplicable) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation PeriodConversion Date. Promptly after such determination of the Daily Combination Settlement Amounts, Daily Net Settlement Amounts Amount or the Daily Conversion ValuesValue, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Combination Settlement AmountsAmount or the Conversion Value, as the Daily Net Settlement Amountscase may be, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e), if any. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change of Control Repurchase Notice or Optional Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change of Control Repurchase Notice or Optional Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on either (i) the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) aboveabove or (ii) in the case of a Company Conversion, the Company Conversion Date (the “Conversion Date”). Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of relevant Conversion Date (provided that, with respect to any Conversion Date following the relevant Observation PeriodRegular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date). If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversionconversion thereof, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver or refuse to instruct the stock transfer agent to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Redemption Date that is after a Regular Record Date and on or prior to the Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Change of Control Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Redemption Date described in clause (2) above and any Change of Control Repurchase Date or Redemption Date, described in each case, as described above, clause (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of for the relevant Observation PeriodConversion Date. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Combination Settlement Amounts for the relevant Observation Period Amount and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to the other provisions of this Section 14.02, 12.02 and to Section 14.03(b12.03(b) and Section 14.07(a12.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0212.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 12.02 (“Combination Settlement”), at its election, as set forth in this Section 12.02. In addition, in respect of conversions pursuant to Section 12.01(b)(iii), the Company shall pay to the converting Holder accrued and unpaid interest to, but not including, the Conversion Date (unless the Conversion Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record on such Regular Record Date and the Conversion Obligation shall not include accrued and unpaid interest to, but not including, the Conversion Date).
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15November 1, 2028 or during 2017 and all conversions occurring after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except Prior to November 1, 2017, except for any conversions for which that occur after the relevant Conversion Date occurs during Company’s issuance of a Redemption Period and any conversions for which Notice with respect to the relevant Conversion Date occurs on or after September 15, 2028Notes but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in the period beginning on, and including, November 1, 2017 and ending on, and including, the second Scheduled Trading Day immediately preceding the Maturity Date, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September 15November 1, 20282017, no later than November 1, 2017). Such Settlement Notice shall specify the close relevant Settlement Method and in the case of business on the Trading Day immediately preceding September 15, 2028) (in each casean election of Combination Settlement, the “Cash Percentage Election Deadline”), and the Company relevant Settlement Notice shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)Specified Dollar Amount. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle, $1,000. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate (and cash in lieu of any fractional share of Common Stock);
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 20 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e12.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h12.02(h) and (ii) in the case of a Physical Note (1) complete, complete and manually sign and deliver an the irrevocable notice to the Conversion Agent as set forth in on the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures back of the Depositary or a notice as set forth in the Form of Notice of Conversion, Note (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name (or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registereda facsimile thereof), (2) surrender such Notes, duly endorsed deliver the Notice of Conversion and the Note to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), Conversion Agent at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h12.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0313.02. The conversion of a beneficial interest in a Global Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture and the procedures of the Depositary therefor. Before the holder of a beneficial interest in a Global Note shall be entitled to convert, all or a portion of such holder’s beneficial interest, such holder shall (i) comply with the procedures of the Depositary and if required, pay funds equal to interest payable on the next Interest Payment Date as set forth in Section 12.02(h). If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation Obligation, including any accrued and unpaid interest in respect of conversions pursuant to Section 12.01(b)(iii) on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0412.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow and as set forth in Section 12.02(a). The In any case in which a Holder does not receive a separate cash payment for accrued and unpaid interest upon conversion of its Notes, the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) for conversions pursuant to Section 12.01(b)(iii); (4) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (45) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs (x) on or after September October 15, 2028 2025 shall be settled using the same Settlement Method or (y) during a Redemption Period shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September October 15, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September October 15, 20282025), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Scheduled Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September October 15, 20282025, no later than the close of business on the Scheduled Trading Day immediately preceding September October 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2025). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion Conversion Date or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, timely delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in respect such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02shall be deemed to be $1,000. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee)Holders, the Company may, prior to September October 15, 20282025, at its option option, irrevocably elect to settle satisfy its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent with respect to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) Notes through Combination Settlement with a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per of $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to for all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionnotice.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (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 Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts, Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any ay Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed converted and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (MongoDB, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ki) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (i) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September June 15, 2028 or during a Redemption Period 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the The Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but but, except for any conversions that occur during the period from, and including, June 15, 2025 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the fourth immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall deliver such Settlement Notice to converting Holders, Holders (with a copy to the Trustee and the Conversion Agent (if other than the TrusteeAgent) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) occurring during a Redemption Periodthe period from, in such Redemption Noticeand including, or (y) on or after September June 15, 20282025 to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on the Trading Business Day immediately preceding September June 15, 20282025 or (y) (in each case, for which the “Cash Percentage Election Deadline”Company has irrevocably elected a Settlement Method or a Specified Dollar Amount pursuant to Section 14.02(a)(vi), and the Company shall indicate as described in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”Section 14.02(a)(vi)). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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.
(bvi) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable By written notice to the Conversion Agent as set forth in Holders, the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent Trustee and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if requiredthe Company may, furnish appropriate endorsements and transfer documents and (4) if requiredprior to June 15, pay funds equal 2025, at its option, irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate its right to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)elect a Settlement Method. The Trustee (and, if different, the irrevocable election will apply to all conversions on Conversion Agent) shall notify the Company of any conversion pursuant Dates occurring subsequent to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect delivery of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03notice. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for For the avoidance of doubt, all Holders of record on such an irrevocable election, if made, will be effective without the Regular Record Date immediately preceding need to amend this Indenture or the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionincluding pursuant to Section 10.01(i).
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon Upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, cause to be delivered to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a “Settlement Amount” number of ADSs equal to the sum Conversion Rate in effect immediately prior to the close of the Daily Settlement Amounts for each of the 20 Trading Days during business on the relevant Observation Period for such NoteConversion Date, together with casha cash payment, if applicable, in lieu of delivering any fractional share ADSs (“Fractional ADSs”) (assuming delivery of Common Stock the maximum number of ADSs due upon conversion that do not represent a fractional ADS) in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading third Business Day immediately following the relevant Conversion Date; provided that, if a Conversion Date occurs (or, in i) following the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day Regular Record Date immediately preceding September 15the Maturity Date, 2028subject to clause (ii) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinebelow, the Company shall no longer cause such delivery (and payment, if applicable) to be made on the Maturity Date or (ii) after the Ordinary Shares have been replaced by the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settleReference Property consisting solely of cash in accordance with Section 14.07, the Company shall settle, its Conversion Obligation by paying cash cause the consideration due in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice conversion to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent be paid to the date of converting Holder on the Irrevocable Election Notice using tenth Business Day immediately following the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the related Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversionDate. For the avoidance of doubt, such an irrevocable electionneither the Trustee nor any Agent shall have any responsibility to deliver ADSs upon conversion of any Note to any person or deal with cash payments in relation to conversions, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of except for cash payable payments in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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 determinationADS.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), and complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and/or all transfer or similar taxes set forth herein and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an a duly completed irrevocable notice Notice of Conversion to the Conversion Agent as set forth in Agent, the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to Company and the applicable procedures of the ADS Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion AgentTrustee, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)) and (5) if required, pay any transfer or similar taxes as set forth herein. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered and no Notes may be surrendered for conversion by a Holder for conversion thereof if such Xxxxxx Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice in accordance with Section 15.03. A Notice of Conversion shall be deposited at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. 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 the Conversion Agent or 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 ADSs to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp stamp, issue, transfer or similar issue or transfer tax due on the issue delivery of any shares the ADSs upon conversion of Common Stock upon conversionthe Notes (or the issuance of the underlying Ordinary Shares), unless the tax is due because the Holder requests such shares ADSs (or such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued ADSs delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified the Redemption Date that is after a Regular Record Date and on or prior to the third Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the third Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders as of record the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock ADSs delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the last Trading Day of the relevant Observation PeriodConversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable Fractional ADS deliverable upon conversion based on the Daily VWAP Last Reported Sale Price of the ADSs on the last relevant Conversion Date (or if such Conversion Date is not a Trading Day Day, the immediately preceding Trading Day).
(k) In accordance with the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued ADSs upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for the relevant Observation Period such ADSs, shall deliver such legal opinions and any fractional shares remaining after such computation other information or documentation and shall be paid comply with the Unrestricted Deposit Agreement and the Restricted Deposit Agreement (as the case may be), in casheach case, as required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Samples: Indenture (Bilibili Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15, 2028 or during the date of the Company’s issuance of a Redemption Period Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after March 1, 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the close of business on the Business Day before the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in any conversion for which the case relevant Conversion Date occurs (i) after the Company’s issuance of any conversions occurring (x) during a Redemption Period Notice and prior to the close of business on the Business Day before the related Redemption Date, or (yii) on or after September 15March 1, 20282025), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xi) during after the date of issuance of a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than Notice and prior to the close of business on the Trading Business Day immediately preceding September 15before the related Redemption Date, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Redemption Notice (and, in the percentage case of a partial redemption, in a notice sent on the consideration due upon conversion in excess relevant Redemption Notice Date to all Holders of the principal portion of the Notes being converted that will be paid in cash not called for redemption) or (the “Cash Percentage”)ii) on or after March 1, 2025, no later than March 1, 2025. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method with respect to settlesuch conversion. 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 Notes. 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 Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall settle, its be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Obligation by paying cash in respect Date that occurs on or after the date of delivery to the Holders of the principal portion Certain Distributions Notification until the Certain Distributions Conversion Period End Date.
(iv) The cash, shares of the converted Notes Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee)Physical Settlement applies, the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if Cash Settlement applies, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies, the Company shall pay or deliver, as the case may be, to set the Cash Percentage per converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 30 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or the second Business Day immediately following the last Trading Day of the relevant Observation Period, if any other Settlement Method applies. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any or a Fundamental Change Repurchase Date or Redemption Date, in each case, as described Date referred to above, shall receive the full interest payment due on the Maturity Date or other applicable corresponding Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Cerence Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject Unless the Conversion Date of any conversion in accordance with this Article 14 is on or after the Irrevocable Net Share Settlement Election Date, if any, and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15March 1, 2028 2030 or during after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except Prior to March 1, 2030, except for any conversions for which that occur after the relevant Conversion Date occurs during Company’s issuance of a Redemption Period and any conversions for which Notice with respect to the relevant Conversion Date occurs on or after September 15, 2028Notes but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) IfUnless a Conversion Date is on or after the Irrevocable Net Share Settlement Election Date, if any, if, in respect of any such Conversion Date (or in the period beginning on, and including, March 1, 2030 and ending on, and including, the third Scheduled Trading Day immediately preceding the Maturity Date, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice). The Company must select a settlement method and inform holders of such settlement method by no later than March 1, or (y) 2030 in the case of conversions occurring on or after September 15March 1, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)2030. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder a number of shares of Common Stock equal to the Irrevocable Election Notice using product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage specified (Settlement, the Company shall pay to the converting Holder in such Irrevocable Election Notice) for respect of each $1,000 principal amount of NotesNotes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 40 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) The Company shall have the right, in its sole discretion and without the consent of any Holder, to irrevocably elect (an “Irrevocable Net Share Settlement Election”), by notice to Holders, the Trustee and the Conversion Agent, promptly at any time prior to March 1, 2030, that Combination Settlement, with a Specified Dollar Amount equal to $1,000), apply to each and every conversion of any Security whose Conversion Date is on or after the date (the “Irrevocable Net Share Settlement Election Date”) the Company provides such notice, which election, once given, shall be irrevocable; provided, however, that the Company shall have the right to irrevocably renounce its right to make an Irrevocable Net Share Settlement Election by notifying Holders, the Trustee and the Conversion Agent at any time prior to the earlier of (A) March 1, 2030 and (B) the Company’s exercise of the Irrevocable Net Share Settlement Election, in which case no Irrevocable Net Share Settlement Election is permitted to be made after such notice; if the Company has duly made an Irrevocable Net Share Settlement Election, then the Company need not, and may not, thereafter provide a Settlement Method Election Notice in respect of any conversion of a Note.
(c) Subject to Section 14.02(e14.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice or an Option Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Such Option Repurchase Notice in accordance with Section 15.03, respectively. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(cd) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth otherwise provided in Section 14.03(b) and or Section 14.07(a)14.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(de) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ef) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(fg) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(gh) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hi) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following if the Company has specified a Redemption Date that is after a Regular Record Date immediately preceding and on or prior to the Maturity corresponding Interest Payment Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if for conversions following the Company has specified a Redemption Date that is after a Regular Record Date and for the interest payment due on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; March 1, 2031 or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts exists such amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record DateNotes.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Altra Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September the date of the Company’s issuance of a Redemption Notice with respect to any Notes and prior to the close of business on the Business Day before the related Redemption Date will be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after January 15, 2028 or during a Redemption Period 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice but prior to the close of business on the Business Day before the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September January 15, 20282025, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in any conversion for which the case relevant Conversion Date occurs (i) after the Company’s issuance of any conversions occurring (x) during a Redemption Period Notice and prior to the close of business on the Business Day before the related Redemption Date, or (yii) on or after September January 15, 20282025), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xi) during after the date of issuance of a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than Notice and prior to the close of business on the Trading Business Day immediately preceding September before the related Redemption Date, in such Redemption Notice (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (ii) on or after January 15, 2028) (in each case2025, the “Cash Percentage Election Deadline”)no later than January 15, and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)2025. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence with respect to any conversion as described in the preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected the Default Settlement Method with respect to settlesuch conversion. 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 Notes. 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 Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in the foregoing, in certain circumstances described in Section 14.01(b)(ii), the Company shall settle, its be permitted to irrevocably elect Physical Settlement in a Certain Distributions Notification and any such election would be applicable to conversions with a Conversion Obligation by paying cash in respect Date that occurs on or after the date of delivery to the Holders of the principal portion Certain Distributions Notification until the Certain Distributions Conversion Period End Date.
(iv) The cash, shares of the converted Notes Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee)Physical Settlement applies, the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if Cash Settlement applies, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C) if Combination Settlement applies, the Company shall pay or deliver, as the case may be, to set the Cash Percentage per converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 20 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”” which notice shall be irrevocable, in either case) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if Physical Settlement applies (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company shall settle any such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day), and, for the purposes of calculating the consideration due upon such conversion, the Conversion Date thereof will be deemed to occur on the second Scheduled Trading Day preceding the Maturity Date), or the second Business Day immediately following the last Trading Day of the relevant Observation Period, if any other Settlement Method applies. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any or a Fundamental Change Repurchase Date or Redemption Date, in each case, as described Date referred to above, shall receive the full interest payment due on the Maturity Date or other applicable corresponding Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or on the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), in the case of Physical Settlement, or based on the Daily VWAP for the last Trading Day of the relevant Observation Period, in the case of Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Slack Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15March 1, 2028 or during 2024, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282024, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption Period with respect to the Notes and prior to the related Redemption Date, or (y) for which the relevant Conversion Date occurs on or after September 15March 1, 20282024), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Notice of Redemption Periodwith respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption Notice, or (y) on or after September 15March 1, 20282024, no later than the close of business on the Trading Day immediately preceding September 15March 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2024). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for Settlement or Physical Settlement with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent () shall be computed as follows: if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date; if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 25 consecutive Trading Days during the related Observation Period; and if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 25 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Conversion Rate shall not be adjusted for any accrued and unpaid interest on any converted Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date and any Fundamental Change Repurchase Date or Redemption Date, described in each case, as described above, clauses (1)-(3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Invitae Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b14.03(a) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection Section 14.02(j) (k“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 14.02(j) (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September July 15, 2028 or during a Redemption Period 2025 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which Subject to subclause (i) above and notwithstanding anything to the contrary in subclause (iv) below, where a Notice of Redemption has been sent pursuant to Article 16, the Company will specify in the related Notice of Redemption the Settlement Method (and in the case of an election of Combination Settlement the relevant Notice of Redemption shall indicate the Specified Dollar Amount) for all conversions with a Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date that occurs on or after September 15the date the Company has sent the Notice of Redemption until the earlier of (1) the close of business on the Business Day immediately preceding the related Redemption Date (or if the Company fails to pay the Redemption Price on the Redemption Date as specified in the Notice of Redemption, 2028the close of business on the Business Day immediately preceding such later date on which the Redemption Price is paid) and (2) the second Scheduled Trading Day prior to the Maturity Date.
(iii) Subject to subclauses (i) and (ii) above, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiiv) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), If the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such a Conversion Date (or such periodperiod of Conversion Dates, as the case may be) to converting Holders), the Trustee and Company shall deliver such Settlement Notice to the Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September July 15, 20282025, no later than the close of business on the Trading Day immediately preceding September July 15, 2028) (2025). Such Settlement Notice shall specify the relevant Settlement Method and in each casethe case of an election of Combination Settlement, the “Cash Percentage Election Deadline”), and the Company relevant Settlement Notice shall indicate in such Cash Percentage Notice the percentage Specified Dollar Amount per $1,000 principal amount of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)Notes. If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for Settlement or Physical Settlement with respect to such conversion Conversion Date or during such period Conversion Dates and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$1,000. 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 Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. Notwithstanding anything to the contrary in this Section 14.02(a), the Company shall settle, its be permitted to elect Physical Settlement in any Certain Distributions Notification as set forth in Section 14.01(b)(ii) and any such election shall be applicable to conversions with Conversion Obligation by paying cash in respect Dates that occur from the date of the principal portion Certain Distributions Notification until the related Certain Distributions Conversion Period End Date.
(v) The cash, shares of the converted Notes Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivvi) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(h) and (ii) in the case of a Physical Certificated Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)) and (5) if required, pay all transfer or similar taxes. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of such interest payable on the Notes so convertedconverted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of Business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date, in respect of Notes converted after the close of business on such Regular Record Date and prior to the open of business on such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (3) if , in respect of Notes converted after the Company has specified a Redemption Date that is after a close of business on such Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding open of business on such Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, Redemption Date and any Fundamental Change Repurchase Date or Redemption Datedescribed in subclauses (1), in each case, as described above, (2) and (3) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Dates Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028 or during a Redemption Period 2028, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or (y) any conversions for which the relevant Conversion Date occurs on or after September 15June 1, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Company shall inform converting Holders through (and upon a written request to) the Trustee and of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period, in such the related Notice of Redemption Notice, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after September 15June 1, 2028, no later than the close of business on the Trading Day immediately preceding September 15June 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) 0% with respect to any such conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) and the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax or other similar governmental charge due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Array Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 30 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15January 1, 2028 or during a Redemption Period 2019 shall be settled using the same forms and amounts of consideration.
(ii) . Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282019, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) . If, in respect of any Conversion Date (or in applicable period, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to converting Holders), the Company shall inform converting Holders through the Trustee and of such election (the Conversion Agent (if other than the Trustee“Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15January 1, 20282019, no later than the close of business on the Trading Day immediately preceding September 15January 1, 20282019) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionherein.
(ivii) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and (4e) and (5) if required, pay funds equal to any interest Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for any accrued and unpaid interestSpecial Interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestSpecial Interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interestSpecial Interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes, any accrued and unpaid interest Special Interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Special Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Special Interest Record Date will receive the full amount of interest any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount of interest Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Special Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Special Interest Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Special Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Special Interest Record Date immediately preceding the Maturity Date (if and to the extent Special Interest is payable on the Maturity Date, ) or any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, in subclause (2) of the immediately preceding sentence shall receive the full interest Special Interest payment due on the Maturity Date or other applicable Special Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Special Interest Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Palo Alto Networks Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) 14.02 and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day Note (other than a conversion as a result of the relevant Observation PeriodFirst Mandatory Conversion or a Subsequent Mandatory Conversion), the Company shall shall, at its election, pay or deliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each Common Stock (“Physical Settlement”) or a combination of cash and shares of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock (“Combination Settlement”), as set forth in accordance with subsection (k) of this Section 14.02. Notwithstanding anything to the contrary in this Indenture or the Notes, the Settlement Method in respect of the First Mandatory Conversion and any Subsequent Mandatory Conversion shall be Physical Settlement and the Company shall not have any ability to elect any other Settlement Method in respect of the First Mandatory Conversion and any Subsequent Mandatory Conversion.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15January 1, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts Settlement Method (including the same relative proportion of consideration.
(ii) cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282020 and conversions as a result of the First Mandatory Conversion or any Subsequent Mandatory Conversion, the Company shall use the same forms and amounts Settlement Method (including the same relative proportion of consideration cash and/or shares of the Common Stock) for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in If the case of any conversions occurring (x) during Company elects a Redemption Period or (y) on or after September 15, 2028)Settlement Method, the Company elects shall deliver notice to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and Holders through the Conversion Agent (if other than of such Settlement Method the Trustee) Company has selected no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15January 1, 20282020, no later than the close of business on the Trading Day immediately preceding September 15January 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinetimely elect a Settlement Method, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal portion amount of Notes shall be equal to $1,000. If the converted Notes and delivering shares of Common Stock Company has timely elected Combination Settlement in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and any conversion but does not timely notify the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each Specified Dollar Amount per $1,000 principal amount of Notes, including or the Company is deemed to have elected Combination Settlement, the Specified Dollar Amount shall be deemed to be $1,000.
(at iii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company’s optionCompany in respect of any conversion of Notes (other than a conversion resulting from the First Mandatory Conversion or any Subsequent Mandatory Conversion) a specified minimum Cash Percentage per (the “Settlement Amount”) shall be computed by the Company 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 Notes with an ability being converted a number of shares of Common Stock equal to continue the Conversion Rate on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to set Section 14.02(i));
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth being converted cash in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice an amount equal to the Holders, sum of the Trustee and Daily Conversion Values for each of the 20 consecutive VWAP Trading Days during the related relevant Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Agent (if other than the Trustee)Obligation in respect of such conversion by Combination Settlement, the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts pay and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Valuesdeliver, as the case may be, and to the converting Holder in respect of each $1,000 principal amount of Notes being converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the related Observation Period (plus cash payable in lieu of delivering any fractional share of Common StockStock issuable upon conversion pursuant to Section 14.02(i)), the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the plus an amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee equal to accrued and unpaid interest (including without limitation any Special Additional Interest) to but excluding the applicable Conversion Date, unless the Conversion Agent (if other than Date occurs during the Trustee) shall have no responsibility for period after the close of business on any such determination.
(b) Subject to Section 14.02(e)Regular Record Date and before the opening of business on the corresponding Interest Payment Date, before any Holder of a Note shall in which case interest will be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next such Interest Payment Date to which such Holder is not entitled as set forth the Holders in Section 14.02(h) and (ii) in whose names the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) Notes are registered at the office close of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which business on such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03Regular Record Date. If more than one Note shall be surrendered for conversion at any one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(iv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if applicable, the amount of cash payable in lieu of any fractional share of Common Stock, 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, if applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(i) To convert a beneficial interest in a Global Note pursuant to Section 14.01(a) (which conversion is irrevocable), the holder of such beneficial interest must:
(A) comply with the Applicable Procedures; and
(B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(e); and
(ii) To convert a Certificated Note, the Holder must:
(A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) and such Note to the Conversion Agent;
(B) if required, furnish appropriate endorsements and transfer documents; and
(C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to Section 14.01 on the Conversion Date for such conversion. If a Holder has already delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date.
(c) A Note shall be deemed to have been converted (in each case, the “Conversion Date”) (i) immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection Section 14.02(b) above with respect to a conversion pursuant to Section 14.01, (bii) aboveimmediately prior to the close of business on the last VWAP Trading Day of the First Mandatory Observation Period with respect to a Note subject to the First Mandatory Conversion and (iii) immediately prior to the close of business on the Subsequent Mandatory Conversion Date with respect to a Note subject to Subsequent Mandatory Conversion. Except as set forth in Section 14.03(b) and Subject to the provisions of Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation on with respect to a conversion pursuant to Section 14.01 or Section 14.12(b), as applicable, on:
(i) the second third Business Day immediately following the relevant Conversion Date if the Company elects Physical Settlement for a conversion pursuant to Section 14.01 or for the Physical Settlement of Notes converted pursuant to a Subsequent Mandatory Conversion; or
(ii) the third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash Settlement or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting HoldersHolders (or Holders whose Notes have been mandatorily converted pursuant to Section 14.12), the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary Depositary, as the case may be, 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) In case any Certificated Note shall be surrendered for partial conversionconversion or shall be mandatorily converted in part, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered such Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionbeing converted.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if If Notes are converted after the close of business on a Regular Record Date and for the payment of interest, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of after the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement (or in the case of Notes mandatorily converted pursuant to Sections 14.12(a) or (b)) or (ii) the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder (or Holder whose Notes have been mandatorily converted) shall have the right to receive the Settlement Amount (with respect to a conversion pursuant to Section 14.01) or the amount set forth in Sections 14.12(a) or (b) with respect to a Mandatory Conversion due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion in an amount based on (i) the Daily VWAP on the relevant Conversion Date if the Company elects Physical Settlement (or in the case of Notes mandatorily converted pursuant to Sections 14.12(a) or (b)) or (ii) the Daily VWAP on the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have electedelect) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and and, if applicable, any fractional shares share remaining after such computation shall be paid in cash.
(j) Notwithstanding anything to the contrary in this Indenture or the Notes, the Company agrees it may only select the Physical Settlement Method in respect of its Conversion Obligation and that the Company shall not have any ability to elect any other Settlement Method in respect of its Conversion Obligation.
Appears in 1 contract
Samples: Indenture (Whiting Petroleum Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.0213.02, Section 14.03(b) and 13.03(b)and Section 14.07(a13.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0213.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 13.02 (“Combination Settlement”), at its election, as set forth in this Section 13.02. Notwithstanding the foregoing, at any time prior to December 1, 2026, the Company may make a one-time irrevocable election to settle all conversions of the Notes from the date of such notice pursuant to clause (D) of Section 13.02(c)(iv) (the “Net Share Settlement Election”). Upon making the Net Share Settlement Election, the Company will promptly deliver a written notice to the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in a manner contemplated by this Indenture, including through the facilities of the Depositary. For the avoidance of doubt, the Net Share Settlement Election, if made, will be effective without the need to amend this Indenture or the Notes. Simultaneously with providing written notice of the Net Share Settlement Election, the Company will publish the information in such notice on its website or through such other public medium as the Company may use at that time. If the Company has made the irrevocable Net Share Settlement Election, the Company may only settle the conversion of the applicable Notes pursuant to clause (D) of Section 13.02(a)(iv).
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15December 1, 2028 or during 2026 and all conversions for which the relevant Conversion Date occurs after the issuance of a Notice of Redemption Period and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period with respect to the Notes, but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15December 1, 20282026, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in the case of any for conversions occurring (x) during after the issuance of a Notice of Redemption Period or (y) on or after September 15December 1, 20282026, as the case may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) and has not made the Net Share Settlement Election, the Company shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Notice of Redemption Periodand prior to the related Redemption Date, in such Notice of Redemption Notice, or (y) on or after September 15December 1, 20282026, no later than the close of business on the Trading Day immediately preceding September 15December 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2026). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period;
(at C) if the Company’s optionCompany elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a specified minimum Cash Percentage Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period; and
(D) if the Company has made the irrevocable Net Share Settlement Election, the Company shall satisfy its Conversion Obligation in respect of such conversion by Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per of $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option1,000.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (INFINERA Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.028.02, Section 14.03(b8.03(b) and Section 14.07(a8.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 8.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (i) of this Section 8.02 (“Combination Settlement”), at its election, as set forth in this Section 8.02.
(i) All conversions occurring on or after April 1, 2017 shall be settled using the same Settlement Method.
(ii) With respect to conversions occurring prior to April 1, 2017, the Company shall use the same Settlement Method for all conversions 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 the Company elects a Settlement Method, the Company shall inform Holders so converting through the Trustee of the Settlement Method it has elected (including the Specified Dollar Amount if the Company elects Combination Settlement) no later than the close of business on the second Business Trading Day immediately following the last Trading Day related Conversion Date (or in the case of any conversion occurring on or after April 1, 2017, no later than April 1, 2017). If the Company does not timely elect a Settlement Method for a conversion, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company elects Combination Settlement, but does not timely notify converting Holders of the relevant Specified Dollar Amount, such Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed by the Company 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 a number of shares of Common Stock equal to the product of (1) the aggregate principal amount of Notes to be converted, divided by $1,000, and (2) the applicable Conversion Rate in effect;
(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 Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” Amount equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02Period.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e8.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h8.02(g). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 8 on the Conversion Date for such conversion. No Holder may surrender Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice in accordance with Section 15.039.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the The Company shall pay or deliver, as the case may be, the consideration due in respect of Settlement Amount to such Holder no later than the third Scheduled Trading Day immediately following the relevant Conversion Obligation on Date, if the second Business Company elects Physical Settlement, or no later than the third Scheduled Trading Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, if the Company shall issue or cause to be issued, and deliver elects any other Settlement Method (subject to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number provisions of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion ObligationSection 8.03(b) and Section 8.07(a)).
(d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Note Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowunless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates and such Holder was the Holder of record on such Regular Record Date. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, interest to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, interest to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will shall be deemed to be paid first out of the any cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following if such Notes are converted after the close of business on the Regular Record Date immediately preceding the Maturity Date and before close of business on the second Scheduled Trading Day immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted AmountsInterest, if any Defaulted Amounts Interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (if the Company elects Physical Settlement) or the last Trading Day of the relevant applicable Observation PeriodPeriod (if the Company elects Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: First Supplemental Indenture (GT Advanced Technologies Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section Except as provided in Section 14.03(b) and Section Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 60 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (k(j) of this Section Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Dates Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after September 15July 1, 2028 or during a Redemption Period 2027, shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period Period, and any conversions for which the relevant Conversion Date occurs on or after September 15July 1, 20282027, the Company shall use the same forms and amounts of consideration for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period or (y) any conversions for which the relevant Conversion Date occurs on or after September 15July 1, 20282027), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) to ), the Company shall inform converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions occurring (x) of Called Notes for which the relevant Conversion Date occurs during a the related Redemption Period, in such the related Notice of Redemption Notice, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after September 15July 1, 20282027, no later than the close of business on the Trading Day immediately preceding September 15July 1, 20282027) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the principal portion of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or elect a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) 0% with respect to any such conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or (if applicable) and the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) and the Daily Conversion Values 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) Subject to Section Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding (i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental Change Repurchase Date or Redemption Date, described in each caseclause (3) of the immediately preceding sentence, as described aboveapplicable, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares shares, if any, that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Semtech Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject If the Company has not received the requisite approval from its shareholders in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual prior to August 15, 2020 (“Shareholder Approval”) to issue 20% or more of its Common Shares upon conversion of the Notes prior to the relevant Conversion Date (or, if earlier, August 15, 2020), and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following Company shall pay to the last Trading Day converting Holder, in respect of each $1,000 principal amount of Notes being converted, solely an amount of cash as if the Company had elected Cash Settlement as set forth in this Section 14.02. If the Company has received Shareholder Approval prior to the relevant Observation PeriodConversion Date (or, if earlier, August 15, 2020), and subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), Common Shares, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock Share in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and Common Shares, together with cash, if applicable, in lieu of delivering any fractional Common Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02. If the Company receives Shareholder Approval on any day, it shall so notify the Holders, the Trustee and the Conversion Agent within five Business Days of such approval.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September August 15, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts Settlement Method. For the avoidance of considerationdoubt, if the Company has not received Shareholder Approval prior to August 15, 2020, Cash Settlement shall apply to all conversions of Notes with a Conversion Date occurring on or after August 15, 2020.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September August 15, 20282020, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) IfFollowing the Company’s receipt of Shareholder Approval, if, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September August 15, 20282020, no later than the close of business on the Trading Day immediately preceding September August 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company has received Shareholder Approval and does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Combination Settlement in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderits Conversion Obligation, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an ability to continue to set election of Combination Settlement, the Cash Percentage relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. 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 Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Settlement Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage Specified Dollar Amount per $1,000 principal amount of Notes with an ability shall be deemed to continue be $1,000.
(iv) Subject to set the Cash Percentage per Company’s receipt of Shareholder Approval as described in this Section 14.02 (a), the cash, Common Shares or combination of cash and Common Shares in respect of any conversion of Notes (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 Notes at being converted a number of Common Shares equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects (or above the specified minimum is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage set forth in such Irrevocable Election NoticeSettlement, the Company shall, after shall pay to the date converting Holder in respect of such election, inform Holders converting their each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, Daily Conversion Values for each of the 100 consecutive Trading Days during the related Observation Period; and
(C) if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth elects (or is deemed to have elected) to satisfy its Conversion Obligation in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery respect of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). Howeverconversion by Combination Settlement, the Company shall pay or deliver, as the case may nonetheless choose be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to execute such an amendment at its optionthe sum of the Daily Settlement Amounts for each of the 100 consecutive Trading Days during the related Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockShare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common StockShares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, pursuant to Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method; provided however that with respect to conversions for which Physical Settlement applies and the relevant Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date, the Company shall deliver and, if applicable, pay the consideration due in respect of the Conversion Obligation on the Maturity Date. If any shares of Common Stock Shares are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 Shares to which such Holder shall be entitled entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock Shares upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder Xxxxxx in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock Shares issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and Common Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all applicable Holders of record at the close of business on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered Shares shall be issuable upon conversion is registered shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Invacare Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b10.03(b) and Section 14.07(a10.07(a), upon conversion of any Note, on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 Trading Days during the relevant applicable Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.0210.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15June 1, 2028 or during a Redemption Period 2017 shall be settled using the same forms and proportionate amounts of consideration.
(ii) Except Subject to clause (iv) below, except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs that occur on or after September 15June 1, 20282017, the Company shall use the same forms and proportionate amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and proportionate amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), If the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashcash in respect of a conversion, the Company will deliver a notice shall inform converting Holders through the Trustee of such election (the “Cash Percentage Settlement Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15June 1, 20282017, no later than the close of business on the Trading Day immediately preceding September 15June 1, 20282017) (in each either case, the “Cash Percentage Settlement Method Election DeadlineDate”), ) and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due each share issuable upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If Subject to clause (iv) below, if the Company does not make such an election at or deliver a Settlement Notice prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, settle its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminderremainder, if any, of the its Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionherein.
(iv) Notwithstanding anything to the contrary in the Notes or in the Indenture, with respect to any conversion of the Notes, the Company shall not be permitted to elect a Cash Percentage of less than 100% with respect to any conversion of Notes and shall settle its Conversion Obligation entirely in cash unless prior to the relevant Settlement Method Election Date the Company has received the Stockholder Approval. With respect to any conversion of a Note, if prior to the relevant Settlement Method Election Date the Company has not received the Stockholder Approval, the Company shall not be permitted to elect a Cash Percentage of less than 100% and shall settle its Conversion Obligation entirely in cash.
(v) The Daily Settlement AmountsAmounts (if applicable), the Daily Net 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, the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stockshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e10.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h10.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h10.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 10 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0311.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the such Holder requests such shares of Common Stock to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0410.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will shall be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder the holder of record of such shares as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Last Trading Day of the relevant applicable Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: First Supplemental Indenture (Bottomline Technologies Inc /De/)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, 14.02 (including Section 14.03(b14.02(j)) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day Note (other than a conversion as a result of the relevant Observation Perioda Mandatory Conversion), the Company shall shall, at its election, pay or deliver, as the case may be, to the converting Holder, in respect full satisfaction of each $1,000 principal amount of Notes being convertedits Conversion Obligation, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each Common Stock (“Physical Settlement”) or a combination of cash and shares of the 20 Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock (“Combination Settlement”), as set forth in accordance with subsection (k) of this Section 14.02. Notwithstanding anything to the contrary in this Indenture or the Notes, the Settlement Method in respect of any Mandatory Conversion shall be Physical Settlement and the Company shall not have any ability to elect any other Settlement Method in respect of any Mandatory Conversion.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15January 1, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts Settlement Method (including the same relative proportion of consideration.
(ii) cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15January 1, 20282020 and conversions as a result of any Mandatory Conversion, the Company shall use the same forms and amounts Settlement Method (including the same relative proportion of consideration cash and/or shares of the Common Stock) for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in If the case of any conversions occurring (x) during Company elects a Redemption Period or (y) on or after September 15, 2028)Settlement Method, the Company elects shall deliver notice to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and Holders through the Conversion Agent (if other than of such Settlement Method the Trustee) Company has selected no later than the close of business on the Trading Day immediately following the relevant related Conversion Date (or, or in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15January 1, 20282020, no later than the close of business on the Trading Day immediately preceding September 15January 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadlinetimely elect a Settlement Method, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 Original Principal Amount of Notes shall be equal to settle$1,000. If the Company has timely elected Combination Settlement in respect of any conversion but does not timely notify the Conversion Agent of the Specified Dollar Amount per $1,000 Original Principal Amount of Notes, or the Company is deemed to have elected Combination Settlement, the Specified Dollar Amount shall be deemed to be $1,000.
(iii) The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (other than a conversion resulting from any Mandatory Conversion) (the “Settlement Amount”) shall be computed by the Company as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall settle, its Conversion Obligation by paying cash deliver to the converting Holder in respect of the principal portion each $1,000 Original Principal Amount of the Notes being converted Notes and delivering a number of shares of Common Stock in respect of the reminder, if any, of equal to the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and Rate on the Conversion Agent Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(i));
(B) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of the principal portion of all Notes submitted for such conversion subsequent to the date of the Irrevocable Election Notice using the by Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee)Settlement, the Company shall either post its irrevocable election on its website or disclose pay to the same converting Holder in a current report on Form 8-K respect of each $1,000 Original Principal Amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive VWAP Trading Days during the related relevant Observation Period; and
(C) if the Company elects (or any successor formis deemed to have elected) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount to satisfy its Conversion Obligation in respect of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Noticeconversion by Combination Settlement, the Company shallshall pay and deliver, as the case may be, to the converting Holder in respect of each $1,000 Original Principal Amount of Notes being converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(i)), plus an amount of cash equal to accrued and unpaid interest on the Reduced Principal Amount (including without limitation any Special Additional Interest) to but excluding the applicable Conversion Date, unless the Conversion Date occurs during the period after the date close of such electionbusiness on any Regular Record Date and before the opening of business on the corresponding Interest Payment Date, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage in which case interest will be payable on such Interest Payment Date to the specified minimum Cash Percentage set forth Holders in whose names the Irrevocable Election NoticeNotes are registered at the close of business on such Regular Record Date. An irrevocable election will apply to all If more than one Note conversions on shall be surrendered for conversion at any one time by the same Holder, the Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) Obligation with respect to any conversion. For such Notes shall be computed on the avoidance basis of doubt, such an irrevocable election, if made, will be effective without the need aggregate Original Principal Amount of the Notes (or specified portions thereof to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionextent permitted hereby) so surrendered.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day VWAP Trading Day of the related Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and and, if applicable, the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values and Values, as the case may be, and, if applicable, 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.
(bi) Subject To convert a beneficial interest in a Global Note pursuant to Section 14.02(e14.01(a) (which conversion is irrevocable), before any Holder the holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall beneficial interest must:
(iA) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time Applicable Procedures; and,
(B) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(h) and 14.02(e); and
(ii) in To convert a Certificated Note, the case of a Physical Note Holder must:
(1A) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes such Note to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, ;
(3B) if required, furnish appropriate endorsements and transfer documents and documents; and
(4C) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(h14.02(d) and Section 14.02(e). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 Section 14.01 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by If a Holder thereof if such Xxxxxx has also already delivered a Fundamental Change Repurchase Notice with respect to the Company in respect of a Note, such Notes and Holder may not surrender such Note for conversion until such Holder has not validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If more than one Note shall be surrendered for conversion a Holder has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes that are subject to repurchase will terminate at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed close of business on the basis of Business Day immediately preceding the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrenderedrelevant Fundamental Change Repurchase Date.
(c) A Note shall be deemed to have been converted (in each case, the “Conversion Date”) (i) immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection Section 14.02(b) above with respect to a conversion pursuant to Section 14.01 and (bii) aboveimmediately prior to the close of business on the Mandatory Conversion Date with respect to a Note subject to Mandatory Conversion. Except as set forth in Section 14.03(b) and Subject to the provisions of Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration Settlement Amount due in respect of the Conversion Obligation on with respect to a conversion pursuant to Section 14.01 or Section 14.12(b), as applicable, on:
(i) the second third Business Day immediately following the relevant Conversion Date if the Company elects Physical Settlement for a conversion pursuant to Section 14.01 or for the Physical Settlement of Notes converted pursuant to a Mandatory Conversion; or
(ii) the third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash Settlement or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting HoldersHolders (or Holders whose Notes have been mandatorily converted pursuant to Section 14.12, or pursuant to any stock distribution in accordance with Section 4.01(d)), the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary Depositary, as the case may be, 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) In case any Certificated Note shall be surrendered for partial conversionconversion or shall be mandatorily converted in part, in $1,000 Original Principal Amount or an integral multiple thereof, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount Original Principal Amount equal to the unconverted portion of the surrendered such Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionbeing converted.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversionconversion of such Note, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian of the Global Note at the direction of the Trustee, shall make a notation on such Global Note in the books and records of the Trustee and Depositary as to the reduction in the principal amount Original Principal Amount and the Reduced Principal Amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if If Notes are converted after the close of business on a Regular Record Date and for the payment of interest, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of after the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement (or in the case of Notes mandatorily converted pursuant to Section 14.12 (b)) or (ii) the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that (a) the converting Holder (or Holder whose Notes have been mandatorily converted) shall have the right to receive the Settlement Amount (with respect to a conversion pursuant to Section 14.01) or the amount set forth in Section 14.12 (b) with respect to a Mandatory Conversion due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g).
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes or any stock distribution pursuant to Section 4.01(d), and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion in an amount based on (i) the Daily VWAP on the relevant Conversion Date if the Company elects Physical Settlement (or in the case of a stock distribution pursuant to Section 4.01(d) or Notes mandatorily converted pursuant to Section 14.12(b)) or (ii) the Daily VWAP on the last VWAP Trading Day of the relevant Observation PeriodPeriod if the Company elects or is deemed to elect Combination Settlement. For each Note surrendered for conversion, if the Company has elected (or is deemed to have electedelect) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and and, if applicable, any fractional shares share remaining after such computation shall be paid in cash.
(j) Notwithstanding anything to the contrary in this Indenture or the Notes, the Company agrees it may only select the Physical Settlement Method in respect of its Conversion Obligation and that the Company shall not have any ability to elect any other Settlement Method in respect of its Conversion Obligation.
Appears in 1 contract
Samples: Indenture (Whiting Petroleum Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $US$1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCash Settlement”), ADSs, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock ADS in accordance with subsection 0 of this Section 14.02(“Physical Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any fractional ADS in accordance with subsection 0 of this Section 14.02 (k) of “Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Business Day prior to, the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after September 15, 2028 or during a Redemption Period the 46th Scheduled Trading Day before the Maturity Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the close of business on the second Business Day prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028the 46th Scheduled Trading Day before the Maturity Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (xA) during a the Redemption Period, in such Redemption Notice, Notice or (yB) on or after September 15, 2028the 46th Scheduled Trading Day before the Maturity Date, no later than the close of business on the 46th Scheduled Trading Day immediately preceding September 15, 2028) (in each case, before the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”Maturity Date). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000 principal amount of Notes shall be equal to settleUS$1,000 (such settlement method, the “Default Settlement Method”). 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 US$1,000 principal amount of Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying cash but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in respect such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. shall be deemed to be US$1,000.
(iv) By written notice to Holders (the “Irrevocable Election Notice”)Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028the 46th Scheduled Trading Day before the Maturity Date, at its option option, change the Default Settlement Method to any Settlement Method that the Company is then permitted to elect or irrevocably elect to settle satisfy its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent with respect to the date of Notes through any Settlement Method that the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesCompany is then permitted to elect, including (at the Company’s option) Combination Settlement with a specified minimum Cash Percentage Specified Dollar Amount per $US$1,000 principal amount of Notes of US$1,000 or with an ability to continue to set the Cash Percentage Specified Dollar Amount per $US$1,000 principal amount of Notes at or above the specified minimum Cash Percentage a specific amount set forth in such Irrevocable Election Noticeelection notice. Concurrently If the Company changes the Default Settlement Method or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with providing an ability to continue to set the Irrevocable Election Notice to the HoldersSpecified Dollar Amount per US$1,000 principal amount of Notes at or above a specific amount, the Trustee and Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes through the Trustee, the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same ) in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date writing of such election, inform Holders converting their Notes Specified Dollar Amount in respect of such Cash Percentage the relevant conversion or conversions no later than the relevant Cash Percentage Election Deadlinedeadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, the Trustee, and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Cash Percentage Specified Dollar Amount will be the specified minimum Cash Percentage specific amount set forth in the Irrevocable Election Noticechange or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount will be US$1,000 per US$1,000 principal amount of Notes. An A change in the Default Settlement Method or an irrevocable election will shall apply to for all Note conversions on of Notes with Conversion Dates occurring subsequent to delivery of such Irrevocable Election Noticenotice; provided, however, provided that no such change or election will affect any Cash Percentage Settlement Method theretofore elected (or deemed to be elected) with respect to any conversionNote. For the avoidance of doubt, such an irrevocable election, if mademade by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k)10.01. However, the Company may nonetheless choose to execute such an amendment at its option. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to change the Default Settlement Method or irrevocably fixes the Settlement Method, the Company shall either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s website or disclose the same in a current report on Form 6-K (or any successor form) that is filed with the Commission.
(ivv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any conversion of Notes (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 US$1,000 principal amount of Notes being converted a number of ADSs equal to the Conversion Rate in effect immediately after the close of business on the relevant Conversion Date;
(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 US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each US$1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(vi) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockADS, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional shares of Common StockADS. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(bvii) Subject The Holders may elect to Section 14.02(e)receive Ordinary Shares in lieu of any ADSs deliverable upon conversion by specifying in the relevant Notice of Conversion such election. If a Holder elects to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, before any Holder the Company shall register in the Hong Kong Share Register the Person or Persons designated in the Notice of a Note shall be entitled Conversion as holder of such number of Ordinary Shares equal to convert a Note as set forth above, such Holder shall (i) the number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” (without taking into account any fractional ADS) multiplied by (ii) the number of Ordinary Shares then represented by one ADS as of the Conversion Date (in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(hPhysical Settlement) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). If any shares the Holder has requested in the Notice of Common Stock are due Conversion, to converting Holdersthe extent permitted under applicable law and the rules and procedures of CCASS, the Company shall issue or cause take all necessary action to enable the Ordinary Shares to be issueddelivered to such Holder’s designated Hong Kong stock account in CCASS for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, and deliver if such Holder elects in the Notice of Conversion to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversionDate, the Company shall execute and make share certificate or certificates representing such number of Ordinary Shares available for collection at the Trustee shall authenticate and deliver to or upon the written order office of the Holder Hong Kong Share Registrar or, if so requested in the relevant Notice of Conversion, cause the Hong Kong Share Registrar to mail (at the risk, and, if sent at the Holder’s request otherwise than by ordinary mail, at the expense, of the Note so surrendered a new Note Person to whom such certificate or Notes in authorized denominations in an aggregate principal amount equal certificates are sent) such certificate or certificates to the unconverted portion Person and at the place specified in the Notice of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionConversion.
(eviii) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue Any Ordinary shares deliverable in lieu of any shares of Common Stock upon conversionADSs will be, unless prior to the tax is due because the Holder requests such shares Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and will not be able to be issued in a name other than the Holder’s namedeposited into CCASS until such restrictions are removed. After removal of such restrictions on transfer and resale, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued Ordinary Shares deliverable upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interestNotes, if any, except as set forth belowwill be fully fungible with the Ordinary Shares listed on the Hong Kong Stock Exchange. The Company’s settlement Company further covenants that it will obtain approval to list, subject to official notice of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(k) The Company shall not issue any fractional share of Common Stock issuance upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based Notes, such Ordinary Shares on the Daily VWAP Hong Kong Stock Exchange and register in the Hong Kong Share Register in the Person or Persons designated in the Notice of Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashHong Kong Stock Exchange.
Appears in 1 contract
Samples: Indenture (Bilibili Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 50 consecutive Trading Days during the relevant applicable Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms except that, unless and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, until the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (orreceives Stockholder Approval, in the case of event that the Daily Share Amount for any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each caseduring such Observation Period exceeds the Daily Share Cap, the “Cash Percentage Election Deadline”)Daily Settlement Amount for such Trading Day shall be calculated as if the Daily Share Amount were equal to the Daily Share Cap, and the Company shall indicate have no obligation to deliver cash or any other consideration in respect of such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”)shares. If the Company does not make such an election at or prior obtains Stockholder Approval, thereafter, there shall be no Daily Share Cap applicable to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect calculation of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any Daily Settlement Amounts due upon conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stockshare, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, complete and manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registeredregistered and deliver such Notice of Conversion to the Conversion Agent, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that date such interest is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Datepaid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay pay, at the time it delivers the Settlement Amount, cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Last Trading Day of the relevant applicable Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice conversion at or any time prior to the applicable Cash Percentage Election Deadlineclose of business on the Scheduled Trading Day immediately preceding the Redemption Date, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Medicines Co /De)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September April 15, 2028 or during 2023, and all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Period Notice with respect to the Notes and prior to the related Redemption Date, shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Redemption Period Notice with respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September April 15, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring for which the relevant Conversion Date occurs (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September April 15, 20282023, no later than the close of business on the Trading Day immediately preceding September April 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, complete and manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registeredregistered and deliver such Notice of Conversion to the Conversion Agent, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice with respect to such Notes in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the date such interest is paid, (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that date such interest is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Datepaid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay pay, at the time it delivers the Settlement Amount, cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Medicines Co /De)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation PeriodDebenture, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes Debentures being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September August 15, 2028 2040 or during after the Company’s issuance of a Redemption Period Notice with respect to the Debentures and prior to the related Redemption Date shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except Prior to August 15, 2040, except for any conversions for which that occur after the relevant Conversion Date occurs during Company’s issuance of a Redemption Period and any conversions for which Notice with respect to the relevant Conversion Date occurs on or after September 15, 2028Debentures but prior to the related Redemption Date, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion DatesTrading Days.
(iii) If, in respect of any Conversion Date (or in the period beginning on, and including, August 15, 2040 and ending on, and including, the third Scheduled Trading Day immediately preceding the Maturity Date, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election 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, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during after the date of issuance of a Redemption PeriodNotice with respect to the Debentures and prior to the related Redemption Date, in such Redemption Notice, Notice or (y) on or after September August 15, 20282040, no later than the close of business on the Trading Day immediately preceding September August 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2040). If the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Debentures shall be equal to settle$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. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders Debentures (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder a number of shares of Common Stock equal to the Irrevocable Election Notice using product of (1) the aggregate principal amount of Debentures to be converted, divided by $1,000, and (2) the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage specified (Settlement, the Company shall pay to the converting Holder in such Irrevocable Election Notice) for respect of each $1,000 principal amount of NotesDebentures being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice Debentures being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 20 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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 AmountsAmounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note Debenture shall be entitled to convert a Note Debenture as set forth above, such Holder shall (i) in the case of a Global NoteDebenture, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note Debenture (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes Debentures to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such NotesDebentures, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes Notice of Conversion with respect to any Debentures may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes Debentures and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.0315.02. If more than one Note Debenture shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes Debentures shall be computed on the basis of the aggregate principal amount of the Notes Debentures (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note Debenture shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth otherwise provided in Section 14.03(b) and or Section 14.07(a)14.07, the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note Debenture shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note Debenture so surrendered a new Note Debenture or Notes Debentures in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered NoteDebenture, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes Debentures issued upon such conversion being different from the name of the Holder of the old Notes Debentures surrendered for such conversion.
(e) If a Holder submits a Note Debenture for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note Debenture as provided in this Article 14.
(g) Upon the conversion of an interest in a Global NoteDebenture, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note Debenture as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes Debentures effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note Debenture and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesDebentures into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes Debentures are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes Debentures as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes Debentures on the corresponding Interest Payment Date notwithstanding the conversion. Notes Debentures surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes Debentures so converted; provided that no such payment shall be required (1) for conversions following if the Company has specified a Redemption Date that is after a Regular Record Date immediately preceding and on or prior to the Maturity corresponding Interest Payment Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on conversions following the Regular Record Date immediately preceding for the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been convertedNovember 15, redeemed and/or repurchased, as applicable, following such Regular Record Date2040.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of NotesDebentures, such Person shall no longer be a Holder of such Notes Debentures surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes Debentures and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note Debenture surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant applicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliver, as the case may be, to the converting HolderHolder a settlement amount, in respect of each $1,000 principal amount of Notes being converted, a consisting of, at the Company’s election, solely cash (“Settlement Amount” equal to the sum Cash Settlement”), solely shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates Date occurs on or after September 15May 1, 2028 or during a Redemption Period 2020 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15May 1, 20282020, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028may be), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be) ), the Company shall instruct the Trustee to deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) for which the relevant Conversion Date occurs on or after September 15May 1, 20282020, no later than the close of business on the Trading Day immediately preceding September 15May 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2020). If the Company does not make such an election at or elect a Settlement Method with respect to a specific Conversion Date prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion Settlement or during such period Physical Settlement with respect to that Conversion Date and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to settleequal $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 Notes. 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 Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. In addition, and notwithstanding any Settlement Method election to the contrary, the Company shall settle, its Conversion Obligation by paying cash be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal portion amount of Notes shall be deemed to equal $1,000, in respect of any conversions for which the converted Conversion Date occurs prior to the date the Company receives shareholder approval to increase the number of its authorized but unissued shares of Common Stock that are not reserved for other purposes by 5,181,951 shares or more. The Company shall promptly notify the Trustee, the Conversion Agent and the Holders of Notes following receipt of such shareholder approval.
(iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, including together with cash in lieu of any fractional shares, if any;
(at B) if the Company’s option) a specified minimum Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 60 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holderssum of the Daily Settlement Amounts for each of the 60 consecutive Trading Days during the related Observation Period, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same together with cash in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount lieu of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, orfractional shares, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionany.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all taxes and duties, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer or similar taxes and (45) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder Hxxxxx is not entitled as set forth in Section 14.02(h). The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes, except to the extent that a portion of such Holder’s Notes is not subject to such Fundamental Change Repurchase Notice, and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(bSection 14.03(b)Section 14.07(a) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or 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 entitled, in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversionconversion and any reasonable expense (including reasonable attorneys fees) of the Trustee, the Conversion Agent, or the Custodian due in connection therewith, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, on the Note to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the any cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding following the corresponding Interest Payment Date; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on (1) the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or (2) the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on (1) the Daily VWAP for the relevant Conversion Date, or if such Conversion Date is not a Trading Day, the immediately preceding Trading Day (in the case of Physical Settlement) or (2) based on the Daily VWAP for the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Aceto Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay satisfy its Conversion Obligation by paying or deliverdelivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”), shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs occurring on or after September 15November 1, 2028 or during a Redemption Period 2023 shall be settled using the same forms and amounts of considerationSettlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15November 1, 20282023, the Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to conversions that occur on different Conversion Dates. By written notice to the Holders, the Trustee and the Conversion Agent, the Company may, prior to November 1, 2023, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through Combination Settlement with a specified dollar amount per $1,000 principal amount of Notes of $1,000 for all Conversion Dates occurring subsequent to delivery of such notice.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15November 1, 20282023, no later than the close of business on the Trading Day immediately preceding November 1, 2023), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cashSettlement Method, the Company will shall deliver a written notice (the “Cash Percentage Settlement Notice”) of such election the Settlement Method so elected in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15November 1, 20282023, no later than the close of business on the Trading Day immediately preceding September 15November 1, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”2023). If the Company does not make such an election at or timely elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage Settlement or Physical Settlement for such conversion or during such period and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to settle$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 Notes. If the Company shall settle, delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation by paying but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects to September 15, 2028, at its option irrevocably elect to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, including (at the Company’s option) a specified minimum Cash Percentage per Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability amount equal to continue the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to set have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Cash Percentage per Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice being converted, a Settlement Amount equal to the Holders, sum of the Trustee and Daily Settlement Amounts for each of the Conversion Agent (if other than 50 consecutive Trading Days during the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its optionrelated Observation Period.
(ivv) The Daily Settlement Amounts, the Daily Net 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts or the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and, if different, the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after November 1, 2023, the Company shall settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue any issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests any such shares to be issued in a name other than the Holder’s name, in which case the Holder shall be required to pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow in the fifth sentence of this paragraph. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of NotesNotes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; or (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation PeriodPeriod (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election DeadlineCombination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Liveperson Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) 14.02 and Section 14.07(a), upon conversion of any Note, on Note prior to the second Business Day immediately following the last Trading Day first day of the relevant Observation Mandatory Conversion Period, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a cash (“Settlement Amount” equal to the sum Cash Settlement”) or shares of the Daily Settlement Amounts for each of the 20 Trading Days during the relevant Observation Period for such NoteCommon Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (kj) of this Section 14.02 (“Physical Settlement”), at its election, as set forth in this Section 14.02; provided that if the Listing Condition is not satisfied on the relevant Conversion Date, the Company shall be deemed to have elected Physical Settlement in respect of such conversion. If the Listing Condition becomes satisfied, or ceases to be satisfied, on any day, the Company shall so notify the Holders, the Trustee and the Conversion Agent prior to the open of business on the third Business Day immediately following the date of such satisfaction or cessation. Subject to this Section 14.02 and Section 14.07(a), the Company shall satisfy its Mandatory Conversion Obligation by Cash Settlement or Physical Settlement, at its election, as set forth in this Section 14.02; provided that (x) if the Listing Condition is not satisfied as of the Final Settlement Method Election Date, the Company shall be deemed to have elected Physical Settlement in respect of all Mandatory Conversion Obligations and (y) if Physical Settlement applies (or is deemed to apply) and the Last Reported Sale Price per Share of Common Stock on the second Business Day immediately preceding the Maturity Date is less than the Conversion Price then, notwithstanding anything to the contrary in this Indenture, each $1,000 principal amount of Notes shall convert into an amount of cash equal to $1,000.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period pursuant to Section 14.01(b) shall be settled using the same forms and amounts of considerationSettlement Method. All conversions pursuant to Section 14.01(c) in connection with a particular Merger Event shall be settled using the same Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the The Company shall use the same forms and amounts of consideration Settlement Method for all conversions occurring on pursuant to Section 14.01(a) with the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Settlement Method with respect to any such conversions that occur on with different Conversion Dates.
(iii) If, in respect of any Conversion Date where the Listing Condition is satisfied on such date (or in for all conversions pursuant to Section 14.01(b) where the case Listing Condition is satisfied as of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028the Final Settlement Method Election Date), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Settlement Notice”) of such election the relevant Settlement Method in respect of such Conversion Date (or such periodconversions, as the case may be) ), the Company, through the Trustee, shall deliver such Settlement Notice to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028pursuant to Section 14.01(b), no later than the close of business on the Trading Day immediately preceding September 15, 2028Final Settlement Method Election Date or (y) (in each case, the “Cash Percentage Election Deadline”pursuant to Section 14.01(c), and in the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”relevant Accelerated Mandatory Conversion Notice). If the Listing Condition has been satisfied and the Company does not make such an election at or elect a Settlement Method prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash Physical Settlement in respect of its applicable Conversion Obligation or Mandatory Conversion Obligation, as the principal portion of case may be. Such Settlement Notice shall specify the converted Notes and delivering relevant Settlement Method.
(iv) The cash or shares of Common Stock in respect of the reminder, if any, any conversion of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election NoticeSettlement Amount”), the Trustee and the Conversion Agent ) shall be computed as follows:
(A) if other than the Trustee), the Company may, prior elects (or is deemed to September 15, 2028, at its option irrevocably elect have elected) to settle satisfy its Conversion Obligation in excess respect of such conversion by Physical Settlement, the principal portion of all Notes submitted for conversion subsequent Company shall deliver to the date converting Holder in respect of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of NotesNotes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date (for the avoidance of doubt, including subject to the proviso in the last sentence of Section 14.02(a)); and
(at B) if the Company’s option) a specified minimum Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Percentage per Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes with being converted cash in an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice equal to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount sum of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values for each of the 30 consecutive Trading Days during the related Observation Period.
(v) 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, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, Values and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth abovepursuant to Section 14.01(a), such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, Agent and (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and, and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “relevant Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects (or is deemed to have elected) Physical Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting HoldersHolder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such converting 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 entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.0414.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversionconversion pursuant to Section 14.01(a), a Holder shall not receive any separate cash payment for any accrued and unpaid interest, if any, except as set forth belowinterest that has not been paid . The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and any accrued and unpaid interest, if any, interest that has not been paid to, but excludingnot including, the relevant Conversion Date. As a result, any accrued and unpaid interest, if any, interest that has not been paid to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) Notwithstanding the foregoing, (x) if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes in cash on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required and (1y) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of relevant Conversion Date if the relevant Observation PeriodCompany elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Physical Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP Last Reported Sale Price of the Common Stock on the last Trading Day relevant Conversion Date (in the case of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cashPhysical Settlement).
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall pay or deliversatisfy its Conversion Obligation by paying, as the case may beand if applicable, delivering to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 40 consecutive Trading Days during the relevant Observation Period for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ki) of this Section 14.02.
(i) All conversions (x) for which the relevant Conversion Dates Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related redemption date (y) for which the relevant Conversion Date occurs on or after September 15March 1, 2028 or during a Redemption Period 2030, in each case shall be settled using the same forms and amounts of consideration.
(ii) Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs during after the Company’s issuance of a Notice of Redemption Period but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after September 15March 1, 20282030, the Company shall use the same forms and amounts of consideration Cash Percentage for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration Cash Percentage with respect to conversions that occur on different Conversion Dates.
(iiiii) If, in respect of any Conversion Date (or in the case any conversions of any conversions occurring Notes for which the relevant Conversion Date occurs (x) during on or after the date of issuance of a Notice of Redemption Period and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption or (y) after March 1, 2030, no later than the close of business on or after September 15the Business Day immediately preceding March 1, 20282030), the Company elects to settle all or a portion of its Conversion Obligation in excess of the aggregate principal portion amount of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election cash in respect of such Conversion Date (or such period, as the case may be) ), the Company shall inform Holders so converting in writing, with a copy to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee), of such election (the “Settlement Notice”) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring of any Notes for which the relevant Conversion Date occurs (x) during on or after the date of issuance of a Notice of Redemption Periodand prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption Notice, or (y) on or after September 15March 1, 20282030, no later than the close of business on the Trading Business Day immediately preceding September 15March 1, 2028) (in each case, the “Cash Percentage Election Deadline”2030), and the Company shall indicate in such Cash Percentage Settlement Notice the percentage of the consideration due upon conversion Conversion Obligation in excess of the aggregate principal portion amount of the Notes being converted that will shall be paid in cash (the “Cash Percentage”). If the Company does relevant Holders are not make such an election at or informed of a Cash Percentage prior to the applicable Cash Percentage Election Deadlinedeadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage for with respect to any conversion on such conversion Conversion Date or during such period period, as the case may be, and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the reminder, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the a Cash Percentage specified of 0% with respect to such conversion.
(in such Irrevocable Election Noticeiii) for each $1,000 principal amount For any conversion of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and Amounts, the Daily Conversion Values and the Settlement Amount shall be determined by the Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts, the Daily Net Settlement Amounts or Amounts, the Daily Conversion ValuesValues and the Settlement Amount, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values and the Settlement Amount, 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) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(g) and, if required, pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)14.02(g) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth provided in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliverand, as the case may beif applicable, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or 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.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hg) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, including Special Interest, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excludingnot including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelledcanceled, extinguished or forfeited. Upon a conversion of Notes, any accrued and unpaid interest or Special Interest will be deemed to be paid first out of the cash paid upon such conversion.
(i) . Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will receive the full amount of any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity DateMay 15, 2030; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day Day immediately succeeding following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after an Interest Record Date and on or prior to the Business Day immediately succeeding the date on which the corresponding interest payment is made; or (43) to the extent of any interest constituting Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity DateMay 15, any 2030, a Fundamental Change Repurchase Date or a Redemption Date, in each case, as described above, Date shall receive the full interest payment due on the Maturity Date, the Fundamental Change Repurchase Date or other applicable Interest Payment the Redemption Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, converted following such Regular Interest Record Date.
(jh) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(ki) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on for the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares of Common Stock (if any) that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (MKS Instruments Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02Section 10.02, Section 14.03(b10.04(b) and Section 14.07(a10.08(a), upon conversion of any Note, the Company shall settle its Conversion Obligation by Cash Settlement, Physical Settlement or Combination Settlement, at the Company’s option, in accordance with this Section 10.02.
(i) The Company will initially be deemed to have elected Capped Combination Settlement as the Conversion Settlement Method. On and after the Capped Combination Settlement Release Date, if at all, the Company may from time to time elect a different Conversion Settlement Method by written notice of such election (the “Settlement Notice”) to Holders, the Trustee and the Conversion Agent. If the Company elects Combination Settlement as the Conversion Settlement Method, the Company shall also specify in such Settlement Notice the dollar amount per $1,000 principal amount of Notes up to which the Company will settle its Conversion Obligation in cash, excluding cash in lieu of fractional shares (the “Cash Amount”). Each such election (or deemed election) shall be effective until the Company provides a Settlement Notice to Holders, the Trustee and the Conversion Agent electing a different Conversion Settlement Method or Cash Amount, as applicable; provided, that no such Settlement Notice shall apply to any conversion of Notes unless the Company has delivered such Settlement Notice to Holders, the Trustee and the Conversion Agent on or prior to the Close of Business on the Business Day immediately following the relevant Conversion Date; provided, further, that the Company shall provide notice of the Conversion Settlement Method and, if applicable, Cash Amount (which, for the avoidance of doubt, must be Capped Combination Settlement at all times before the Capped Combination Settlement Release Date), and no Settlement Notice shall apply unless given, (x) for conversions with a Conversion Date on or after the date of issuance of a Redemption Notice and on or prior to the second Business Day preceding the relevant Redemption Date, in the relevant Redemption Notice, (y) for all conversions in connection with a given Make-Whole Adjustment Event, no later than the Effective Date of the Make-Whole Adjustment Event and (z) for conversions with a Conversion Date occurring on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date, on or prior to the Close of Business on the second Business Day immediately following preceding such 22nd Scheduled Trading Day.
(ii) The Company shall use the last same Conversion Settlement Method and, if applicable, Cash Amount for all conversions (A) having the same Conversion Date, (B) having a Conversion Date on or after the date of issuance of a Redemption Notice and on or prior to the second Business Day preceding the relevant Redemption Date, (C) in connection with a given Make-Whole Adjustment Event or (D) having a Conversion Date that is on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date. If the Company elects Combination Settlement in accordance with these provisions but omits to elect a Cash Amount, then the Cash Amount will be deemed to be (x) the Capped Combination Settlement Cash Amount for all conversions with a Conversion Date that is before the Capped Combination Settlement Release Date; and (y) $1,000 in all other cases. The Company will notify the Holders of the relevant Observation PeriodNotes, the Trustee and the Conversion Agent of the date the Company has obtained the NYSE American Stockholder Approval, if at all, and the occurrence of the Capped Combination Settlement Release Date no later than the date the NYSE American Stockholder Approval is obtained and the Capped Combination Settlement Release Date, respectively.
(iii) Except as set forth in Section 10.02(a)(i), Section 10.04(b) and Section 10.08(a), the Company shall pay or deliversettle its Conversion Obligation in accordance with one of the following “Conversion Settlement Methods,” at the Company’s election:
(A) If “Cash Settlement” applies with respect to any conversion, as the case may bethen, to the converting Holder, in respect of for each $1,000 principal amount of Notes being converted, a “Settlement Amount” the Company shall pay to the converting Holder, on or before the second Business Day following the last VWAP Trading Day of the applicable Observation Period, an amount of cash equal to the sum of the Daily Conversion Values for each VWAP Trading Day during such Observation Period.
(B) If “Physical Settlement” applies with respect to any conversion, then, for each $1,000 principal amount of Notes converted, the Company shall deliver to the converting Holder, on or before the second Business Day following the Conversion Date, (1) a number of shares of Common Stock equal to the Conversion Rate on the Conversion Date and (2) cash in lieu of fractional shares, if any.
(C) If “Combination Settlement” applies with respect to any conversion, then, for each $1,000 principal amount of Notes converted, the Company shall pay and deliver to the converting Holder, on or before the second Business Day following the last VWAP Trading Day of the applicable Observation Period, (1) the sum of the Daily Settlement Amounts for each VWAP Trading Day of the 20 Trading Days during the relevant such Observation Period for such Note, together with cash, if applicable, and (2) cash in lieu of delivering any fractional share of Common Stock in accordance with subsection (k) of this Section 14.02.
(i) All conversions for which the relevant Conversion Dates occurs on or after September 15, 2028 or during a Redemption Period shall be settled using the same forms and amounts of consideration.
(ii) Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period and any conversions for which the relevant Conversion Date occurs on or after September 15, 2028, the Company shall use the same forms and amounts of consideration for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same forms and amounts of consideration with respect to conversions that occur on different Conversion Dates.
(iii) If, in respect of any Conversion Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after September 15, 2028), the Company elects to settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company will deliver a notice (the “Cash Percentage Notice”) of such election in respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring (x) during a Redemption Period, in such Redemption Notice, or (y) on or after September 15, 2028, no later than the close of business on the Trading Day immediately preceding September 15, 2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the consideration due upon conversion in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the Company does not make such an election at or prior to the applicable Cash Percentage Election Deadline, the Company shall no longer have the right to elect a Cash Percentage for such conversion or during such period and the Company shall be deemed to have elected to settle, the Company shall settle, its Conversion Obligation by paying cash in respect of the principal portion of the converted Notes and delivering shares of Common Stock in respect of the remindershares, if any, of the Conversion Obligation in excess of the aggregate principal portion of the Notes being converted as set forth elsewhere in this Section 14.02. By notice to Holders (the “Irrevocable Election Notice”), the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2028, at its option irrevocably elect to settle its Conversion Obligation in excess of the principal portion of all Notes submitted for conversion subsequent to the date of the Irrevocable Election Notice using the Cash Percentage specified (in such Irrevocable Election Notice) for each $1,000 principal amount of Notes, including (at the Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company shall either post its irrevocable election on its website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. If the Company irrevocably elects a specified minimum Cash Percentage per $1,000 principal amount of Notes with an ability to continue to set the Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such Irrevocable Election Notice, the Company shall, after the date of such election, inform Holders converting their Notes of such Cash Percentage no later than the relevant Cash Percentage Election Deadline, or, if the Company does not timely notify Holders, such Cash Percentage will be the specified minimum Cash Percentage set forth in the Irrevocable Election Notice. An irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such Irrevocable Election Notice; provided, however, that no such election will affect any Cash Percentage theretofore elected (or deemed to be elected) with respect to any conversion. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.
(iv) The Daily Settlement Amounts, the Daily Net Settlement Amounts and the Daily Conversion Values shall be determined by the Company promptly Promptly following the last day of the each Observation Period. Promptly after such determination of the Daily Settlement Amounts, Daily Net Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common StockPeriod (if applicable), the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts, the Daily Net Settlement Amounts, Amounts (if applicable) or the Daily Conversion Values (if applicable), and the amount of cash payable in lieu of delivering fractional shares of Common StockStock (if applicable). The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(eSection 10.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (iA) in the case of a Global Note, comply with the applicable procedures of the Depositary Applicable Procedures in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (iiB) in the case of a Physical Definitive Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Make-Whole Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, Agent and (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and, if different, and the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 Article 10 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered for conversion by a Holder thereof if such Xxxxxx Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03Section 3.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and the Make-Whole Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Subject to Section 10.02(i), a Note shall be deemed to have been converted immediately prior to the close Close of business Business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period. If any shares of Common Stock are due to converting HoldersHolders upon settlement of the Conversion Obligation or the Make-Whole Obligation, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or (if applicable) 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 entitled, in satisfaction of the Company’s Conversion Obligationcertificate form or in book-entry format.
(d) In case any Definitive Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversionsettlement of the Conversion Obligation or the Make-Whole Obligation, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Transfer Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04Section 10.05, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14Article 10.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian custodian holding such Global Note for the Depositary at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive On the Conversion Settlement Date with respect to any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes, the Company shall pay in cash to the Holders of such converted Notes all accrued and unpaid interest will be deemed to be paid first out of the cash paid upon on such conversion.
(i) Notwithstanding the foregoingNotes to, but not including, such Conversion Settlement Date; provided that, if Notes are converted the Conversion Date for any Note occurs after the close of business on a Regular Record Date with respect to an Interest Payment Date and prior to the open of business on the corresponding such Interest Payment Date, Holders the Company shall, in lieu of making such Notes as of payment, pay, on or before such Interest Payment Date, the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes Note on the corresponding such Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open Holder of business such Note as of the Close of Business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Scheduled Trading day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Redemption Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(ji) The Person in whose name the certificate for any shares of Common Stock delivered shall be issuable upon conversion is registered settlement of the Conversion Obligation shall be treated as a stockholder of record as of the close Close of business Business on the relevant Conversion Date (if the Company elects to satisfy the Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant Observation PeriodPeriod (if the Company elects to satisfy the Conversion Obligation by Combination Settlement). Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(kj) The Company shall not issue any fractional share of Common Stock upon conversion settlement of the Notes Conversion Obligation and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last Trading Day of the relevant Observation Period. For each Note surrendered for conversion, if the Company has elected (or is deemed to have elected) a Cash Percentage less than 100% or does not deliver a Cash Percentage Notice at or prior to the applicable Cash Percentage Election Deadline, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid Conversion Date (in cash.the case of Physical Settlement) or based on the
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