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, the Issuer 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 for which the relevant Conversion Date occurs after the Issuer’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 November 15, 2025, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date, the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after November 15, 2025, no later than November 15, 2025). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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. 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 Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 4 contracts

Samples: First Supplemental Indenture (Intercept Pharmaceuticals, Inc.), Subscription Agreement (Intercept Pharmaceuticals, Inc.), Exchange Agreement (Intercept Pharmaceuticals, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section ~~14.03(b~~14.04(b) and Section ~~14.07(a~~14.08(a), upon conversion of any Note, the ~~Issuer~~ 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~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in and subject to this Section 14.02. Notwithstanding the foregoing, Cash Settlement shall apply (and the Company shall not have the right to elect or apply any Settlement Method other than Cash Settlement) to any conversion of Notes with a Conversion Date that occurs prior to the Cap Termination Date to the extent the number of Common Shares otherwise issuable upon such conversion (assuming the maximum number of Common Shares that could be issued upon such conversion if the total number of Common Shares is not known on the Conversion Date, without regard to any Beneficial Ownership Limit), when aggregated with the number of all Common Shares delivered in respect of conversions of Notes and/or Other Senior Secured Convertible Notes that have occurred on and/or prior to the Conversion Date for such conversion (such numbers subject to appropriate adjustment in compliance with the rules of any exchange on which the Company’s securities are then listed in the event of any adjustment to the Aggregate Share Cap), would exceed the Aggregate Share Cap. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 November 15, 2025~~Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ no later than ~~the close of business~~ 9:30 a.m., New York City time, on the 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 prior to the related Redemption Date, in such Redemption ~~Notice or (y) on or after November 15, 2025, no later than November 15, 2025~~Notice). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion Obligation, ~~and~~ subject to the ~~Specified Dollar Amount per $1,000 principal amount~~ second sentence of ~~Notes shall be equal~~ Section 14.02(a) at all times prior to ~~$1,000~~the Cap Termination Date. 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, which shall not be less than $1,000. If the ~~Issuer~~ 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. At any time after the Cap Termination Date has occurred, the Company may irrevocably elect to satisfy its Conversion Obligation with respect to the 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) and (y) issue a report on Form 8-K or press release or publish on its website to announce that the Company has made such an election. (iv) The Company shall notify the Holders of the Notes, the Trustee and the Conversion Agent of the date the Company has obtained the Requisite NYSE Shareholder Approval, if at all, and the occurrence of the Cap Termination Date no later than the date the Requisite NYSE Shareholder Approval is obtained and the Cap Termination Date, respectively. (v) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 2 contracts

Samples: Supplemental Indenture (Invacare Corp), Supplemental Indenture (Invacare Corp)

Appears in 2 contracts

Samples: Indenture (Avid Technology, Inc.), Indenture (Avid Technology, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November~~ April 15, ~~2025,~~ 2023 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ April 15, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) on or after April 15, 2023 or (y) during a Redemption Period), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption Notice or (y) on or after ~~November~~ April 15, ~~2025~~2023, no later than ~~November~~ the close of business on the Business Day immediately preceding April 15, ~~2025~~2023). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ Company timely 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. By notice to Holders, the Company may, prior to April 15, 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein);~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ Company shall ~~pay~~ pay, or cause to be paid, 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;~~ Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement, or, in the case of any other Settlement ~~(provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date~~Method, ~~the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or~~ on the second Business Day immediately following the last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall ~~pay~~ pay, or cause to be paid, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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;~~ converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity ~~Date;~~ Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 2 contracts

Samples: Indenture (Redfin Corp), Indenture (Redfin Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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~~Shares, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 14.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02, subject to the requirements of Section 13.07. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~December 1, 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 of any Notes for which the relevant Conversion Date occurs (xA) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in ~~such~~ the applicable Redemption Notice or (yB) on or after ~~November 15~~December 1, ~~2025~~2023, no later than ~~November 15~~the close of business on the Business Day immediately preceding December 1, ~~2025)~~2023. If the ~~Issuer~~ Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of ~~its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the ~~Issuer~~ 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. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023). (iv) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as ~~follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder~~ follows in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of ~~shares of~~ Common ~~Stock~~ Shares equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein)~~for such conversion; (B) if ~~the Issuer elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period; and (C) if ~~the Issuer elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement~~conversion, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Share, if any, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the ~~Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock~~same. 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~~13.02(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 ~~procedures of the Depositary in effect at that time~~ Applicable Procedures 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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~~13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 Issuer elects~~ Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies. If any ~~shares of~~ Common ~~Stock~~ Shares are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver~~ delivered) 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 book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~ 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~~13.04, 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 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 ~~Issuer~~ 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~~below in this Section 13.02(h), and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption Date~~ Date, shall receive the full interest payment due on ~~the~~ Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any ~~shares of~~ Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (~~in the case of~~ if Physical ~~Settlement~~Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (~~in the case of~~ if Combination ~~Settlement~~Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 (~~Date, in the case of Physical Settlement) , or based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be ~~issued~~ issuable 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 2 contracts

Samples: Indenture (Tilray, Inc.), Indenture (Aphria 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, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of ~~Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of~~ the Common Stock ~~in accordance with subsection (j) 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~~ the 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 Date occurs on or after ~~November 15~~January 1, ~~2025,~~ 2022 and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the Scheduled Trading Day immediately preceding the related Redemption ~~Date,~~ Date shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption ~~Notice with respect to the Notes~~ Notice, but prior to the Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025~~2022, the ~~Issuer~~ Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ through the Conversion Agent (if other than the Trustee) of such Settlement Method the Company has selected no later than the close of business on the second Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, or in the case of any conversions for which the relevant Conversion Date occurs (x) on or after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~January 1, ~~2025~~2022, no later than ~~November 15~~January 1, ~~2025)~~2022. If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ converting Holders of ~~an election of Combination Settlement, the relevant Settlement Notice shall indicate~~ the Specified Dollar Amount per $1,000 principal amount of Notes~~. If~~ , or the ~~Issuer delivers a Settlement Notice electing~~ Company is deemed to have elected 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~~Settlement, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive VWAP Trading Days during the related relevant Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or and deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 30 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the ~~Issuer~~ 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~~ 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 Section 14.02(e~~To convert a beneficial interest in a Global Note (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 ~~procedures of the Depositary in effect at that time and,~~ 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); 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 thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent or by facsimile~~ 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 Issuer 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; (4C) 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer 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 surrendered~~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 (b~~Section 14.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (~~provided that for any Notes converted after~~ ii) the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second third Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~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 ~~Issuer~~ Company shall execute 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~conversion of such Note, 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 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of the close of business on such Regular Record Date~~ 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~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue 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 or~~ Date, any Redemption Date as described in clause (ii) above and any Fundamental Change Repurchase Date as described in clause (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ 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 Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ 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 ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination 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 2 contracts

Samples: Indenture (Open Text Corp), Indenture (Carbonite Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~14.03, Section ~~14.03(b~~14.04(b) and Section ~~14.07(a~~14.08(a), upon conversion of any ~~Note~~Note pursuant to Section 14.01, the ~~Issuer~~ Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $~~1,000~~ 1.00 principal amount of Notes being converted, cash (“Cash Settlement”), 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~~ 14.03 (“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~~ 14.03 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~14.03. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~January 1, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November 15~~January 1, ~~2025~~2024, no later than ~~November 15~~January 1, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $~~1,000~~ 1.00 principal amount of Notes shall be equal to $~~1,000~~1.00. 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~~ 1.00 principal amount of Notes. If the ~~Issuer~~ 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~~ 1.00 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $~~1,000~~ 1.00 principal amount of Notes shall be deemed to be $~~1,000~~1.00. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $~~1,000~~ 1.00 principal amount of Notes being converted a number of shares of Common Stock equal to the Applicable Conversion Rate in effect on the Conversion Date ~~(and~~ plus cash in ~~lieu of fractional shares as provided herein)~~lieu; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ Company shall pay to the converting Holder in respect of each $~~1,000~~ 1.00 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 25 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, in respect of each $~~1,000~~ 1.00 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 25 consecutive Trading Days during the related Observation ~~Period~~Period plus cash in lieu. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~14.03(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights14.03(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.03(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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~~14.04(b) and Section ~~14.07(a~~14.08(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the ~~Conversion Agent~~ stock transfer 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical Note so surrendered a new Physical Note or 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 ~~Issuer~~ 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 for conversion, the ~~Issuer~~ 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~~ stock 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 ~~14.04~~14.05, 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ will receive the full amount of interest payable on such Notes (including a PIK Payment, if applicable) 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted (regardless of whether a PIK Payment will be made or shares of common stock will be issued, and in the event of a PIK Payment or distribution of shares of common stock, the interest payable will be the cash equivalent of any PIK Payment); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 2 contracts

Samples: Indenture (Endologix Inc /De/), Indenture (Endologix Inc /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, the ~~Issuer~~ 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~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Class A Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Class A 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 Date occurs on or after ~~November 15, 2025~~the Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~June 15, 2018, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2018, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting Holders ~~with a copy to the Trustee~~ (and the Conversion ~~Agent (~~Agent, if ~~other~~ different 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 for which the relevant Conversion Date occurs (x) on or after the ~~date of~~ Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ June 15, ~~2025~~2018, no later than ~~November~~ June 15, ~~2025~~2018). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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. 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 ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, 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. 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. (iv) The cash, ~~shares of Common Stock~~ Class A Shares or combination of cash and ~~shares of Common Stock~~ Class A Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Class A Shares equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~Class A Share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~shares of Common Stock~~Class A Share. 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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~~ Class A Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. If the Company has designated a Redemption Date as described in, and pursuant to, Article 16, a Holder that complies with the requirements for conversion described in this Section 14.02 prior to the close of business on the Business Day immediately preceding the relevant Redemption Date (unless the Company fails to timely pay the Redemption Price, in which case each Holder shall have the right to convert its Notes until the Redemption Price for all Notes to be redeemed has been paid or duly provided for) shall be deemed to have delivered a notice of its election to not have its Notes so redeemed. 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 in Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~shares of Common Stock~~ Class A Shares are due to converting Holders, the ~~Issuer~~ 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~~ Class A Shares to which such Holder shall be entitled in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of Common Stock~~ Class A Shares 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~~ Class A 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~~ Class A 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of Common Stock~~Class A Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ next Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any ~~shares of Common Stock~~ Class A Shares delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional ~~share of Common Stock~~ Class A Share upon conversion of the Notes and shall instead pay cash in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~ Class A Share issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed by the Company 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 2 contracts

Samples: Indenture (Yandex N.V.), Indenture (Yandex N.V.)

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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 ~~Date~~ Dates occurs (x) on or after ~~November~~ March 15, ~~2025, and all conversions for which~~ 2024 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after March 15, 2024), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ March 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. By notice to Holders, the Company may, prior to March 15, 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the 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, ay Fundamental Change Repurchase Date or ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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, the ~~Issuer~~ 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, cash (“Cash Settlement”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 Tax Redemption Date or Optional Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after August 1, 2025 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Business Day prior to the related Tax Redemption Date or Optional Redemption Date (as the case may be), and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or, in the case of any conversions for which the relevant Conversion Date occurs after the date of 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 Tax Redemption Date or Optional Redemption Date (as the case may be), in such Redemption Notice or on or after August 1, 2025, no later than August 1, 2025, as the case may be), the ~~Issuer~~ Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) 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 for which the relevant Conversion Date occurs ~~(x)~~ after the date of 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 Tax Redemption ~~Date~~Date or Optional Redemption Date (as the case may be), in such Redemption Notice or ~~(y)~~ on or after ~~November 15~~August 1, 2025, no later than ~~November 15~~August 1, 2025) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of its Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a 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 in such Settlement Notice, the Specified Dollar Amount per $US$1,000 principal amount of Notes shall be deemed to be $US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), on or before August 1, 2025, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently 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. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (v) The cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein);~~for such conversion; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive Trading Days during the related Observation ~~Period;~~ Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 for each of the 40 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~ADS, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (NIO 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs~~ occurring (x) on or after ~~November 15~~December 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2024 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions occurring (x) during a Redemption Period or (y) on or after December 1, 2024, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November 15~~December 1, ~~2025~~2024, no later than ~~November 15~~the close of business on Business Day immediately preceding December 1, ~~2025~~2024). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ 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 to be converted shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~Notes to be converted. If the ~~Issuer~~ 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 to be converted shall be deemed to be $1,000. Prior to December 1, 2024 (other than during a Redemption Period), the Company may, at its election, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with the provisions of this Indenture, elect to satisfy its Conversion Obligation with respect to all future conversions of Notes with a Conversion Date subsequent to the delivery of such notice through Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes to be converted (such election, an “Irrevocable Settlement Election”); provided that any such Irrevocable Settlement Election that is made during a Redemption Period (but after the relevant Redemption Notice Date) shall not be applicable to conversions with a Conversion Date that occurs during such Redemption Period. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer or Trustee~~Company, 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~interest. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 until 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 Notes that are converted during such period (regardless of whether or not the ~~Notes so converted~~converting Holder was the record 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which~~ corresponding Interest Payment Date; (3) if the ~~corresponding interest payment~~ Company has specified a Redemption Date that is made; 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 after a Regular Record Date ~~immediately preceding the Maturity Date~~ and on or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Scheduled Trading Day of immediately following the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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.corresponding Interest Payment Date; or

Appears in 1 contract

Samples: Indenture (NanoString 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 30 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 (j) 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 ~~Date~~ Dates occurs (x) on or after ~~November~~ June 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2029 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after June 15, 2029), the ~~Issuer~~ 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 “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ June 15, ~~2025~~2029, no later than ~~November~~ the close of business on the Trading Day immediately preceding June 15, ~~2025~~2029) (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 ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to such conversion or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ to, and the Company shall, settle, its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion of Notes~~ the remainder (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and other than cash in lieu of any fractional ~~shares as provided herein~~share)~~; (B)~~ , if any, of the ~~Issuer elects to satisfy its~~ Conversion Obligation in ~~respect~~ excess of ~~such conversion by Cash Settlement,~~ the ~~Issuer shall pay to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~cash~~ as set forth elsewhere 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 Periodthis Section 14.02. (viv) The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values, as the case may be,~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~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~~Amounts or Additional Interest, if any Defaulted Amounts or Additional 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 ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 (Box Inc)

Appears in 1 contract

Samples: Indenture (Red Hat Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this ~~Section 14.02~~‎Section 12.02, ~~Section 14.03(b~~‎Section 12.03(b) and ~~Section 14.07(a~~‎Section 12.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section 14.02~~ ‎Section 12.02 (“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(j) of this ~~Section 14.02~~ ‎Section 12.02 (“Combination Settlement”), at its election, as set forth in this ~~Section 14.02~~‎Section 12.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~June 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2019 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~June 1, ~~2025~~2019, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or, in the case of any conversions for which the relevant Conversion Date occurs on or after June 1, 2019), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or all such conversions, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall ~~deliver~~ inform converting Holders (by delivery of such Settlement Notice ~~in writing~~ to ~~the 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 second 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November 15~~June 1, ~~2025~~2019, no later than ~~November 15~~June 1, ~~2025~~2019). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to ~~Section 14.02(e~~‎Section 12.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall ~~(i)~~ Article 20 in the case of a Global Note, comply with the 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~~‎Section 12.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) Article 21 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in ~~Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~‎Section 12.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this ~~Article 14~~ ‎Article 12 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ~~Section 15.03~~‎Section 13.03. 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~~‎‎Section 12.03(b)‎Section 12.07(a) and ~~Section 14.07(a~~‎Section 12.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ stock 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 14.04~~‎Section 12.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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: First Supplemental Indenture (Ani Pharmaceuticals 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs~~ occurring (x) on or after ~~November 15~~March 1, ~~2025, and all conversions for which the relevant Conversion Date occurs~~ 2026 or (y) after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ March 1, 2026 and any conversions for which the relevant Conversion Date occurs ~~on or~~ after ~~November 15, 2025~~the Company’s issuance of a Redemption Notice and prior to the related Redemption Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period on or after March 1, 2026, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after March 1, 2026, no later than the close of business on the Scheduled Trading Day immediately preceding March 1, 2026, or (y) after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption ~~Notice or (y) on or after November 15, 2025, no later than November 15, 2025~~Notice). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares~~ share of Common Stock issuable upon conversion as ~~provided herein~~set forth in Section 14.02(j)); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion as set forth in Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 that, with respect to any Conversion Date occurring on or after May 15, 2026, the Company will settle any such conversion for which Physical Settlement is applicable on the Maturity Date. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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~~ Date, however, 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Q2 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 ~~Issuer~~ 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 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 (jk) 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 ‎Section 14.02.. (i) All conversions for which the relevant Conversion ~~Date~~ Dates occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2028 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after December 15, 2028), the ~~Issuer~~ 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 “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ December 15, ~~2025~~2028, no later than ~~November~~ the close of business on the Trading Day immediately preceding December 15, ~~2025~~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 ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to~~ Percentage for such conversion or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ 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 December 15, 2028, at its option irrevocably elect to settle its Conversion ~~Obligation~~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, ~~and~~ including (at the ~~Specified Dollar Amount~~ Company’s option) a specified minimum Cash Percentage per $1,000 principal amount of Notes ~~shall be equal~~ with an ability to ~~$1,000. Such Settlement Notice shall specify~~ continue to set 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 Issuer delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount Cash Percentage per $1,000 principal amount of Notes at or above the specified minimum Cash Percentage set forth in such ~~Settlement~~ Irrevocable Election Notice. Concurrently with providing the Irrevocable Election Notice to the Holders, the ~~Specified Dollar Amount~~ 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 ~~shall~~ 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 ~~$1,000~~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 ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Net Settlement Amounts ~~for each of the 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values, as the case may be,~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~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 ~~any~~ Redemption ~~Date~~ Date, in each case, as described above, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (ij) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (jk) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 (Amphastar Pharmaceuticals, Inc.)

Appears in 1 contract

Samples: Indenture (Nii Holdings Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to Article 13, this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (ji) of this Section 14.02 (“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 subsection (ji) 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 Date occurs on or after ~~November~~ February 15, ~~2025~~2038, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect~~ pursuant to ~~the Notes~~ Section 16.01 and prior to the second Scheduled Trading Day immediately preceding the related Redemption ~~Date,~~ Date shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice ~~with respect to the Notes~~ but prior to the second Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, ~~2025~~2038, the ~~Issuer~~ Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the Holders with a copy to~~ Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Settlement Method the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice ~~with respect to the Notes~~ and prior to the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after November 15, 2025, no later than November 15, 2025). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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. 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 Issuer 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 $1,000.064310-0812-15924-Active.25775846.6 60 (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: : (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); ; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 25 consecutive VWAP Trading Days during the related Observation Period; ~~and~~ and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 25 consecutive VWAP Trading Days during the related Observation ~~Period.~~ Period (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of plus cash ~~payable~~ in lieu of ~~delivering~~ any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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~~hereby) so surrendered. (civ) ~~A Note~~ The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be ~~deemed to have been converted immediately prior to~~ determined by 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately Company promptly following the last VWAP Trading Day of the related Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 Promptly after such ~~computation shall be paid in cash~~determination 064310-0812-15924-Active.25775846.

Appears in 1 contract

Samples: Indenture (Hope Bancorp 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes 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 March 15, 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2026, and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee (acting upon the written direction of the Company), shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to the Trustee and~~ the Conversion Agent ~~(if other than~~ and the ~~Trustee)~~ 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 of any Notes (x) for which the relevant Conversion Date occurs (xA) on or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (yB) on or after ~~November~~ March 15, ~~2025~~2026, no later than ~~November~~ the close of business on the Business Day immediately preceding March 15, ~~2025~~2026 or (y) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures~~ similar taxes, if ~~such Holder wishes to exercise its conversion rights)~~ 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 thereof) (a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent ~~or by facsimile~~ (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 ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office or the office of the Conversion ~~Agent~~Agent (if other than the Trustee), (3) if required, furnish appropriate endorsements and transfer ~~documents and~~ documents, (4) 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 ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or ~~Section 14.02(e)~~similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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, a Fundamental Change Repurchase Date or ~~any~~ a Redemption Date shall receive the full interest payment due on the Maturity Date, the Fundamental Change Repurchase Date or ~~such~~ the Redemption ~~Date, as applicable,~~ Date in cash regardless of whether their Notes have been converted following such Regular Record ~~Date~~Date and the converting Holder shall not be required to make a corresponding payment. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Apellis Pharmaceuticals, 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 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 (j) 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 Date occurs on or after ~~November 15~~February 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2026 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~February 1, ~~2025~~2026, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs on or after February 1, 2026), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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 of Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November 15~~February 1, ~~2025~~2026, no later than ~~November 15~~February 1, ~~2025~~2026) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and~~ to such conversion. In no event shall the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ Company’s failure to ~~$1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an~~ make a timely election of ~~Combination Settlement,~~ the ~~relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount~~ Cash Percentage constitute an Event of Notes. If the Issuer 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 $1,000Default under this Indenture. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ 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 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (43) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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 (Firstenergy 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 30 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 (j) 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 Date occurs on or after ~~November 15~~December 1, ~~2025,~~ 2028 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ December 1, 2028 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after December 1, 2028), the ~~Issuer~~ 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 “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025~~2028, no later than ~~November 15~~December 1, ~~2025~~2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect~~ timely make such an election of a ~~Settlement Method~~ Cash Percentage at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Net Settlement Amounts ~~for each of the 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Dail Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 ~~procedures of the Depositary~~ Applicable Procedures 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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.such

Appears in 1 contract

Samples: Indenture (Lyft, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~5.02, Section ~~14.03(b~~5.03(b) and Section ~~14.07(a~~5.07(a), upon conversion of any Note, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), 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~~ (“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~~5.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 for which the relevant Conversion Date occurs after the Issuer’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 November 15, 2025, the Issuer shall The Company will use the same Settlement Method for all ~~conversions with~~ conversion occurring on the same Conversion Date, but ~~the Issuer shall~~ will not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. Notwithstanding the foregoing, all conversions with a Conversion Date occurring on or after February 15, 2023 will be settled using the same Settlement Method, and the Company will notify Holders of that Settlement Method no later than February 15, 2023. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ so converting through the Conversion Agent (if other than the Trustee) and the Trustee of such Settlement Method the Company has selected no later than the ~~close~~ Close of ~~business~~ Business on the Trading Day immediately following the ~~relevant~~ related Conversion ~~Date (or~~Date, ~~in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice~~ or with respect to ~~the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ conversions with a Conversion Date occurring on or after ~~November~~ February 15, ~~2025~~2023, no later than ~~November~~ February 15, ~~2025)~~2023. If the ~~Issuer~~ Company does not timely elect a Settlement Method ~~prior~~ with respect to ~~the deadline set forth in the immediately preceding sentence~~a Conversion Date, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such ~~conversion~~ Conversion Date and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation~~Obligations, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. ~~Such~~ If the Company has elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ converting Holders 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 Issuer 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. (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, a number of shares of Common Stock equal to the Conversion Rate ~~in effect~~ on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ Company shall pay to the converting ~~Holder~~ Holder, in respect of each $1,000 principal amount of Notes being ~~converted~~ converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or and 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 VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the ~~Issuer~~ 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~~ 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 Section 14.02(e~~To convert a beneficial interest in a Global Note (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 ~~procedures of the Depositary in effect at that time and,~~ Applicable Procedures; (B) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 5.02(d) and Section 5.02(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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 5.02(g); 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 thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent or by facsimile~~ 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 Issuer 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; (4C) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 5.02(d) and Section 5.02(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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~5.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 V on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer in respect of~~ a Note, such ~~Notes and~~ Holder may not convert that Note until such Holder has ~~not~~ validly withdrawn such Fundamental Change Repurchase Notice (or, in ~~accordance~~ the case of a Global Note, has complied with ~~Section 15.03. If more than one Note shall be surrendered for conversion at one time by~~ the ~~same Holder, the Conversion Obligation~~ Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 4.01. If a Holder has delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the Notes ~~shall be computed~~ that are subject to repurchase will terminate at the 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 surrendered~~relevant Fundamental Change Repurchase Date. (c) 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~~Section 5.02(b) above. ~~Except as set forth in~~ Subject to the provisions of Section ~~14.03(b~~5.03(b) and Section ~~14.07(a~~5.07(a), the ~~Issuer~~ 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 Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ conversion following the Regular Record Date immediately preceding the ~~Maturity Date~~Stated Maturity, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Stated Maturity ~~Date~~or, if such day is not a Business Day, the first Business Day immediately following the Stated Maturity)~~, or on~~ ; or (ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~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 ~~Issuer~~ Company shall execute 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~conversion of such Note, 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 Securities 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the ~~close~~ Close of ~~business~~ Business on a Regular Record Date for the payment of interest, but prior to the Open of Business on the immediately following Interest Payment Date, Holders of such Notes ~~as of the close of business on such Regular Record Date~~ 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~~ 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 interest payable on the Notes so ~~converted~~converted on such 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;~~ Stated Maturity; (2ii) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iii) to the extent of any ~~Defaulted Amounts~~overdue 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 as of the Close of Business on the Regular Record Date immediately preceding the Stated Maturity and any Fundamental Change Repurchase Date ~~or any Redemption Date~~ as described in clause (ii) above shall receive and retain the full interest payment due on the Stated Maturity or other applicable Interest Payment Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (ih) The ~~Person~~ person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the ~~close~~ Close of ~~business~~ Business on (i) the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement~~), as the case may be~~. Upon a conversion of Notes, such ~~Person~~ 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 ~~time immediately prior~~ Close of Business on such Regular Record Date shall have the right to receive the ~~close of business~~ interest payable on ~~the Conversion~~ such Interest Payment Date, in accordance with Section 5.02(g). (ji) The ~~Issuer~~ 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 ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination 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 (KKR Real Estate Finance Trust Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~9.02, Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), upon conversion of any Note, the Issuer 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 9.02 (“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~~ 9.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~9.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~April 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~April 1, ~~2025~~2023, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Issuer, through the Conversion Agent, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November 15~~April 1, ~~2025~~2023, no later than ~~November 15~~April 1, ~~2025~~2023). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the Issuer 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. 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 Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 30 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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~~9.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights9.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~9.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Issuer of any conversion pursuant to this Article 14 9 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~10.03. 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~~9.03(b) and Section ~~14.07(a~~9.07(a), the Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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~~9.04, 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 149. (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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Issuer elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Issuer 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected ~~(or is deemed to have elected)~~ Combination 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: First Supplemental Indenture (Intrexon Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, on the ~~Issuer~~ 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 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 (j) 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 14.0213.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~May 1, ~~2025,~~ 2028 and all conversions for which the relevant Conversion Date occurs after the ~~Issuer’s~~ issuance of a Notice of Redemption ~~Notice with respect to the Notes~~ and prior to the related Redemption ~~Date,~~ Date shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the ~~Notes~~ Notes, but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~May 1, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or for conversions occurring after the issuance of a Notice of Redemption or on or after May 1, 2028, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ 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 any conversions for which the relevant Conversion Date occurs (x) after the date of after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November 15~~May 1, ~~2025~~2028, no later than ~~November 15~~the close of business on the Scheduled Trading Day immediately preceding May 1, ~~2025~~2028) and the Company shall indicate in such Settlement Notice the percentage of 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 ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of the remainder (other than cash in lieu of any ~~conversion~~ fractional share), if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of 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 (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Biv) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the The Daily Settlement Amounts ~~for each of~~ (if applicable), 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) 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 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~~13.02(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 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~~13.02(h) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 Issuer 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~any~~ Redemption ~~Date~~ Date, in each case, shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable~~other applicable Interest Payment Date in cash, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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~~ 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~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period and all conversions for which the relevant Conversion Date occurs on or after ~~November~~ August 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2027 shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ August 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 (x) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such~~ the related Redemption Notice or (y) any conversions on or after ~~November~~ August 15, ~~2025~~2027, no later than ~~November~~ the close of business on August 15, ~~2025~~2027). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 applicable Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to August 15, 2027, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option. (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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, “pdf” or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Indie Semiconductor, 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, the ~~Issuer~~ 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~~Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Ordinary Share in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ 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 Date occurs on or after ~~November 15, 2025~~a Redemption Notice Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~January 1, 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after ~~the Issuer’s issuance of~~ a Redemption Notice ~~with respect to the Notes~~ Date but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (subject to the below proviso), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through written notice to the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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,~~ Date; provided that in the case of any conversions (x) for which the relevant Conversion Date occurs ~~(x)~~ on or after ~~the date of issuance of~~ a Redemption Notice ~~with respect to the Notes~~ Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, the Company shall do so in such Redemption Notice or (y) on or after ~~November 15~~January 1, ~~2025~~2023, the Company shall do so no later than ~~November 15~~January 1, ~~2025)~~2023. If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method shall not constitute a Default or Event of Default under this Indenture. (iv) The cash, ~~shares of Common Stock~~ Ordinary Shares or combination of cash and ~~shares of Common Stock~~ Ordinary Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Ordinary Shares equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~Ordinary Share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~Ordinary Shares. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (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 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 ~~any taxes payable as described in Section 14.02(d)~~ pay all transfer or similar taxes, if any, required pursuant ot Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 ~~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~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (i) on the second Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical Settlement (~~provided that for any Notes converted after~~ unless such Conversion Date occurs following June 15, 2023, in which case the ~~close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall~~ Company will deliver the relevant consideration ~~due in respect of the Conversion Obligation~~ on the Maturity Date), or (ii) on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~shares of Common Stock~~ Ordinary Shares are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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~~ Ordinary Shares to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~ 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 ~~Issuer~~ 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~~Special Interest, if any, except as set forth below, and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid ~~interest~~ Special Interest on any converted Notes. The ~~Issuer~~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~~Special Interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of Common Stock~~Ordinary Shares, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ 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 Record Date immediately preceding the Maturity Date~~June 15, 2023; (2) if the ~~Issuer~~ Company has specified a Tax Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is madeSpecial 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~~ June 15, 2023, or a Fundamental Change Repurchase Date or ~~any~~ a Tax Redemption Date shall receive the full ~~interest~~ Special Interest payment due on the ~~Maturity~~ corresponding Special Interest Payment Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted or repurchased following such ~~Regular~~ Special Interest Record ~~Date~~Date or June 15, 2023, as the case may be. (i) The Person in whose name ~~any shares of Common Stock delivered~~ the Ordinary Shares, if any, shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 otherwise 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 (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (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, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“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 ~~subsection (j~~Section 14.02(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 Date occurs on or after ~~November~~ May 15, ~~2025,~~ 2025 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ Tax Redemption, and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November~~ May 15, ~~2025~~2025 or after the date of the issuance of a Notice of Tax Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, the ~~Issuer~~ Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. By notice to Holders of the Notes, the Company may, prior to May 15, 2025, at its option, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or a minimum Specified Dollar Amount or range of Specified Dollar Amounts), or eliminate the right to elect a Settlement Method, for all Conversion Dates occurring subsequent to delivery of such notice. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ 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 (A) in the case of any conversions for which the relevant Conversion Date occurs on or after May 15, 2025, no later than May 15, 2025 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ Combination Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Cash Settlement in respect of its Conversion Obligation~~, and~~ . If the ~~Specified Dollar Amount per $1,000 principal amount~~ Company has timely elected Combination Settlement in respect of ~~Notes shall be equal to $1,000. Such Settlement Notice shall specify~~ any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 Issuer 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. (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 20 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the ~~Issuer~~ 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~~ 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 Section 14.02(e~~To convert a beneficial interest in a Global Note (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 ~~procedures of the Depositary in effect at that time and,~~ 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); 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 thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent or by facsimile~~ 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 Issuer 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; (4C) 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer 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 surrendered~~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 (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Combination Settlement ~~Method~~or if the Company elects or is deemed to elect Cash Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~conversion of such Note, 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 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date 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~~converted 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 ~~Issuer~~ Company has ~~specified~~ called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue 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 and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ 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 Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ 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 ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Royal Caribbean Cruises 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, the ~~Issuer~~ 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, cash (“Cash Settlement”), ~~shares of Common Stock,~~ ADSs together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADSs (“Fractional ADSs”) (in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”)) or a combination of cash and ~~shares of Common Stock~~ADSs, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, subject to the Holder’s election to receive Ordinary Shares in lieu of such ADSs, as set forth in this Section 14.02.. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Redemption Date, ~~shall~~ as applicable, and all conversions for which the relevant Conversion Date occurs on or after the 50th Scheduled Trading Day immediately preceding the stated Maturity Date will be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on the second Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, as applicable, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025,~~ the ~~Issuer~~ 50th Scheduled Trading Day immediately preceding the stated Maturity Date the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs after the date of issuance of a Tax Redemption Notice or Cleanup Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Tax Redemption Date or Cleanup Redemption Date, as applicable, in such Redemption Notice or on or after the ~~Issuer~~ 50th Scheduled Trading Day immediately preceding the Maturity Date, no later than the 50th Scheduled Trading Day immediately preceding the Maturity Date, as the case may be), the Company elects to a Settlement Method, the Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) 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 for which the relevant Conversion Date occurs ~~(x)~~ after the date of issuance of a Tax Redemption Notice or Cleanup Redemption Notice, as applicable, with respect to the Notes and prior to the close of business on the second Scheduled Trading Day prior to the related Tax Redemption ~~Date,~~ Date or Cleanup Redemption Date in such Redemption Notice or ~~(y)~~ on or after ~~November 15, 2025~~the 50th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15~~the 50th Scheduled Trading Day immediately preceding the Maturity Date) (in each case, ~~2025~~the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement with a Specified Dollar Amount of US$1,000 per US$1,000 principal amount of Notes in respect of its Conversion ~~Obligation~~Obligation (such settlement method, ~~and~~ the ~~Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~“Default Settlement Method” initially elected by the Company). 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 ~~Issuer~~ Company delivers a 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 in such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be deemed to be US$1,000. (iv) The Company may, by written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), prior to the 50th Scheduled Trading Day immediately preceding the Maturity Date, change the Default Settlement Method or elect to irrevocably fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. If the Company changes the Default Settlement Method or elects to irrevocably fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company shall, after the date of such change or election, as the case may be, notify Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely notify the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $~~1,000.~~1,000 per $1,000 principal amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently 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. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.02(a). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. (ivv) ~~The~~ Subject to Section 14.03 and Section 14.04, the cash, ~~shares of Common Stock~~ ADSs or a combination of cash and ~~shares of Common Stock~~ ADSs, as applicable, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $US$1,000 principal amount of Notes being converted a number of ~~shares of Common Stock~~ ADSs equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein);~~for such conversion; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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~~and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 for each of the 40 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of Common Stock~~ADS, the ~~Issuer~~ Company shall notify the ~~Trustee and the Conversion Agent (if other than the Trustee)~~ ADS Depositary in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~ADSs. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such ~~determination.~~determination or the distribution of such cash payable in lieu of Fractional ADSs. (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, ~~before~~ provided that such election shall apply to all (but not part) of the ADSs deliverable upon conversion. If a Holder elects to receive Ordinary Shares in lieu of any ~~Holder~~ ADSs deliverable upon conversion, and the Company elects to settle the relevant Conversion Obligation by Physical Settlement or Combination Settlement, 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) in the case of ~~a Global Note~~Physical Settlement, ~~comply with~~ the ~~procedures~~ number of ADSs deliverable upon conversion as described above under the “Settlement Amounts” in Section 14.02(a)(v) (without taking into account any fractional ADS) multiplied by the number of Ordinary Shares then represented by one ADS immediately after the close of business as of the ~~Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment~~ relevant Conversion Date ~~to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d)~~ or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and~~ (ii) in the case of a ~~Physical Note~~ Combination Settlement, for each of the 40 consecutive Trading Days during the related Observation Period, the number of ADSs deliverable upon conversion as described in the definition of “Daily Settlement Amount” (1without taking into account any fractional ADS) ~~complete~~in respect of such Trading Day multiplied by the number of Ordinary Shares then represented by one ADS as of the same time as the applicable Conversion Rate for such Trading Day. If the Holder has requested in the Notice of Conversion, ~~manually sign~~ to the extent permitted under applicable law and ~~deliver an irrevocable notice~~ the rules and procedures of CCASS, the Company shall take all necessary action to enable the Ordinary Shares to be delivered 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, 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 as set forth in~~ Date, the ~~Form~~ Company shall make share certificate or certificates representing such number of ~~Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”)~~ Ordinary Shares available for collection at the office of the ~~Conversion Agent or~~ 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 ~~facsimile and state in writing therein~~ ordinary mail, at the ~~principal amount~~ expense, of ~~Notes~~ the Person to ~~be converted and the name or names (with addresses) in which~~ whom such ~~Holder wishes the~~ certificate or certificates ~~for any shares~~ are sent) such certificate or certificates to the Person and at the place specified in the Notice of ~~Common Stock~~ Conversion. If a Holder fails to ~~be delivered upon settlement of~~ elect in the Conversion ~~Obligation~~ Notice to ~~be registered~~receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, (2) surrender such Notes, duly endorsed to the Issuer 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 interest payable on the next Interest Payment Date to which such Holder is will not ~~entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different,~~ be able to subsequently receive the ~~Conversion Agent) shall notify~~ Ordinary Shares represented by such ADSs by withdrawing such Ordinary Shares represented thereby from the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 ADS Depositary 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Resale Restriction Termination Date. (iviii) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock Any ADSs deliverable upon conversion of the Notes and ~~shall instead pay cash~~ any Ordinary Shares represented thereby will, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d). Any Ordinary shares deliverable in lieu of ~~delivering~~ any ~~fractional share~~ ADSs will be, prior to the Resale Restriction Termination Date, subject to certain transfer restrictions as set forth in Section 2.05(d) and as imposed by the Hong Kong Share Registrar, and will not be able to be deposited into CCASS until such restrictions are removed. After removal of ~~Common Stock issuable~~ such restrictions on transfer and resale, any Ordinary Shares deliverable upon conversion ~~based~~ of the Notes, if any, will be fully fungible with the Ordinary Shares listed on the ~~Daily VWAP for~~ Hong Kong Stock Exchange. The Company further covenants that it will obtain approval to list, subject to official notice of issuance upon conversion of the ~~relevant Conversion Date (~~Notes, such Ordinary Shares on the Hong Kong Stock Exchange and register in the ~~case~~ Hong Kong Share Register in the Person or Persons designated in the Notice of ~~Physical Settlement) or based~~ Conversion as the holder of the Ordinary Shares in order to facilitate their listing and trading on the ~~Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement)~~Hong Kong Stock Exchange. For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (ZTO Express (Cayman) 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after November 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 November 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver in writing such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and the~~ Trustee, Conversion Agent (if other than the Trustee) and converting Holders no later than the close of business on the first 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after November 15, ~~2025~~2024, no later than November 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate in writing 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 the foregoing, the Company shall be permitted to irrevocably fix the Settlement to any Settlement Method that the Company is then permitted to elect in any Certain Distributions Notification and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notification until the Certain Distributions Conversion Period End Date. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 60 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 60 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the to satisfy its Conversion Obligation ~~on the Maturity Date)~~through Physical Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through 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 ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such 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~~converted 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date~~ corresponding Interest Payment Date and a conversion occurs after such Regular Record Date and on ~~which~~ or prior to the ~~corresponding interest payment is made~~open of business on such 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 or and any ~~Redemption~~ Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Luminex Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November~~ July 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2017 shall be settled using the same Settlement Method. (ii) ~~Except for any conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect~~ Prior to ~~the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November~~ July 15, ~~2025~~2017, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions of Notes occurring during the period beginning on, and including, July 15, 2017 and ending on, and including, the Scheduled Trading Day immediately preceding the Maturity Date, as the ~~Issuer~~ case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 ~~for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November~~ July 15, ~~2025~~2017, no later than ~~November~~ July 15, ~~2025~~2017). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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~~Amount. If the ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted ~~cash in~~ an amount in cash equal to the sum of the Daily Conversion Values for each of the 40 15 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 15 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Paying Agent in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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(b~~13.03(b) and in Section ~~14.07(a)~~13.07, the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~portion of the Company’s Conversion ~~Obligation~~Obligation 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 and such Holder, or such Holder’s nominee or nominees, in accordance with the procedures set forth in Section 14.03. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ Company 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the ~~relevant~~ Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the ~~relevant~~ Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 such receipt would cause such converting Holder to become, 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 such delivery would not result in it being 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

Samples: Indenture (Ares Capital 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 20 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 (j) 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 Date occurs on or after ~~November 15~~March 1, ~~2025,~~ 2030 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~forms and proportions of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date~~ March 1, 2030 and any conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportions of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportions of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period or any conversions for which the relevant Conversion Date occurs on or after March 1, 2030), the ~~Issuer~~ 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 “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 (x) any conversions for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~March 1, ~~2025~~2030, no later than ~~November 15~~March 1, ~~2025~~2030) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect~~ timely make such an election of a ~~Settlement Method~~ Cash Percentage at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Net Settlement Amounts ~~for each of the 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after (and in any event within one Business Day following the last day of the Observation Period) such determination of the Daily Settlement ~~Amounts or~~ Amounts, Daily Net Settlement Amounts, 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion Values~~, as the case may be~~, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 ~~procedures of the Depositary~~ Applicable Procedures 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore~~ the exercise of such ~~Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its~~ conversion ~~rights~~rights shall be irrevocable) and (ii) in the case of a Physical Note (or a Global Note processed outside of DTC) (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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the ~~Issuer~~ 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. 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ will receive the full amount of interest payable on such Notes on ~~the corresponding~~ such 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~~converted 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 for conversions following the ~~Issuer has specified a Redemption Date that is after a~~ Regular Record Date ~~and on or prior to~~ immediately preceding the ~~Business Day immediately following the date on which the corresponding interest payment is made~~Repurchase Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date~~ corresponding Interest Payment Date; (4) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the second Trading Day immediately following the corresponding ~~interest payment is made;~~ Interest Payment Date or (45) 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 or~~ Date, the Repurchase Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date, the Repurchase Date, the Fundamental Change Repurchase Date or ~~such~~ the Redemption ~~Date, as applicable,~~ Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 (Microchip Technology Inc)

Appears in 1 contract

Samples: First Supplemental Indenture (Repligen Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. ~~(i)~~ i. All conversions for which the relevant Conversion Date occurs on or after 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, and all conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2024, shall be settled using the same Settlement Method. (ii) . Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the second Business Day immediately preceding the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) . If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall inform #92449509v11 the Trustee and, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 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) on or after the date of issuance of a Redemption Notice with respect to the Notes and ~~prior to~~ on or before the second Business Day immediately preceding the related Redemption Date, in such Redemption Notice or (y) on or after November 15, ~~2025~~2024, no later than November 15, ~~2025~~2024). If With respect to any conversion, if the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ 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. Such Settlement Notice shall specify the relevant~~ Default Settlement Method ~~and in~~ with respect to such conversion. If the ~~case of an election of~~ Company chooses Combination Settlement, it will specify the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If However, if the ~~Issuer~~ 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the 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 November 15, 2024, 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 Redemption Notice and shall be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after November 15, 2024. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Physical ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 (~~and~~ provided that the Company shall deliver cash in lieu of fractional shares as ~~provided herein~~described in Section 13.02(j)); (B) if ~~the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ Cash ~~Settlement~~Settlement applies, the ~~Issuer~~ 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 VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period; and (C) if ~~the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination ~~Settlement~~Settlement applies, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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~~ Conversion Reference Period.. #92449509v11 ~~(v)~~ v. The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the ~~Observation~~ Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~13.02(h) and ~~any taxes payable as described~~ (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section ~~14.02(d~~13.02(b)(3), (4) ~~or Section 14.02(e~~and (5). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. A Holder of a Note may obtain copies of the required Form of Notice of Conversion from the Conversion Agent. 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~~‎Section 13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last VWAP Trading Day of the ~~Observation~~ Conversion Reference Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 #92449509v11 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted with a Conversion Date occurring after ~~the close of business on~~ a Regular Record Date but prior to the next Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall receive~~ will receive, on or, at the Company’s election, before such 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~~ 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 their surrender for such conversion, must be accompanied by funds equal to the amount of interest payable on ~~the~~ such Notes so ~~converted~~converted on such Interest Payment Date; provided that no such payment shall be required (1) ~~for conversions following~~ if such Conversion Date is after the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified #92449509v11 a Redemption Date that is after such Regular Record Date and on or prior to the second Business Day immediately following such Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after such Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is madesuch 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~~Notes. 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 or any Redemption~~ Date shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Live Nation Entertainment, Inc.)

Conversion Procedure; Settlement Upon Conversion. ~~(a) Subject to this Section 14.02, Section 14.03(b~~Except as provided in ‎Section 13.03(b) and ~~Section 14.07(a~~‎Section 13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section 14.02~~ ‎Section 13.02 (“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(j) of this ~~Section 14.02~~ ‎Section 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~the case may be, as described below. (i) All conversions ~~for which~~ occurring during the ~~relevant~~ Common Conversion ~~Date occurs on~~ Period, during the Maturity Conversion Period or ~~after November 15, 2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to~~ Period, as the ~~Notes and prior to the related Redemption Date~~case may be, shall be settled using the same Settlement Method~~. (ii)~~ . Except for any conversions ~~for which~~ occurring during the ~~relevant~~ Common Conversion ~~Date occurs after~~ Period, the ~~Issuer’s issuance of~~ Maturity Conversion Period or 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 November 15, 2025~~Period, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates~~. (iii) If, in respect of any Conversion Date~~. If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice~~ Company shall notify in writing Holders converting through the Trustee of the Settlement Method it has selected (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in ~~such~~ the relevant Redemption ~~Notice or~~ Notice, (y) ~~on or after November 15, 2025~~during the Common Conversion Period, no later than ~~November 15~~March 1, ~~2025~~2027, or (z) during the Maturity Conversion Period, no later than March 1, 2042). If the ~~Issuer~~ Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical Settlement in respect of to its Conversion Obligation. If the Company elects Combination Settlement, ~~and~~ but does not timely notify converting holders of the Specified Dollar Amount per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000. At any time on or prior to March 1, 2042, the Company may irrevocably elect to satisfy the Conversion Obligation with respect to any Notes to be converted after the date of such election through any Settlement Method the Company is permitted to elect (including Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and~~ at or above a specific amount set forth 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~~notice). If the ~~Issuer delivers a~~ Company irrevocably elects to fix the Settlement ~~Notice electing~~ Method to 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,~~ with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, inform the Holders converting their Notes, the Trustee and the Conversion Agent of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method, or, if the Company does not timely notify the Holders, such Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be ~~$1,000~~elected) with respect to any Note pursuant to the provisions described above. The Company may make such an election at its sole discretion without the consent of the Holders. Upon making such an election, the Company shall concurrently (A) post such information on its website or otherwise publicly disclose such information and (B) provide written notice to the Trustee and the Conversion Agent (if other than the Trustee) and to the Holders. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to ‎Section 10.01(h). However, the Company may nonetheless choose to execute such an amendment at its option. (ivii) 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 If the ~~Issuer~~ Company elects (or is deemed to ~~satisfy its Conversion Obligation in respect of such conversion by~~ have elected) Physical Settlement, the ~~Issuer~~ Company shall deliver to ~~the~~ converting ~~Holder~~ Holders 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 (and cash~~ Rate, together with cash, if applicable, in lieu of delivering any fractional ~~shares as provided herein)~~share of Common Stock in accordance with subsection ‎(j) of this ‎Section 13.02; (B) if If the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Issuer~~ Company shall pay to ~~the~~ converting ~~Holder~~ 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 ~~during~~ in the ~~related~~ relevant Observation Period; and (C) if If the ~~Issuer~~ Company elects ~~(or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, to converting Holders in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period, 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. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (HCI Group, 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, the Issuer 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025~~2023, and all conversions for which the relevant Conversion Date occurs after the Issuer’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 for which the relevant Conversion Date occurs after the Issuer’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 ~~November 15~~January 1, ~~2025~~2023, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date, the Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~January 1, ~~2025~~2023, no later than ~~November 15~~January 1, ~~2025~~2023). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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. 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 Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 20 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in ~~Section 14.02(d~~‎Section 14.02‎(d) or ~~Section~~ ‎Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 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 any taxes payable as described in ~~Section 14.02(d~~‎Section 14.02‎(d) or ~~Section~~ ‎Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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~~ ‎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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (in the case of Physical ~~Settlement~~Settlement where the Notes are converted on or prior to the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date), the second Scheduled Trading Day immediately preceding the Maturity Date (in the case of Physical Settlement where the Notes are converted after the close of business on the Business Day immediately preceding the Regular Record Date immediately preceding the Maturity Date) or the last Trading Day of the relevant Observation Period (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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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: First Supplemental Indenture (Intercept Pharmaceuticals 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November 15~~March 1, ~~2025~~2047 shall be settled using the same Settlement Method, and all conversions “in connection with” a Redemption pursuant to Section 16.01(b) for which the relevant Conversion Date occurs ~~after~~ during the ~~Issuer’s issuance of a~~ Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November 15~~March 1, ~~2025~~2047 or during the Redemption Period, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer shall deliver such Settlement Notice in writing to the Holders~~ Company, with a copy to the Trustee and the Conversion Agent (if other than the Trustee) ), shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) on or after March 1, 2047, no later than the ~~date~~ close of ~~issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~business on Scheduled Trading Day immediately preceding March 1, ~~in such Redemption Notice~~ 2047 or (y) ~~on or after November 15~~during the Redemption Period, ~~2025, no later than November 15, 2025~~in the relevant Redemption Notice). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Purchase Notice or a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such ~~Notes~~ Notes, as applicable, and has not validly withdrawn such Purchase Notice or Fundamental Change Repurchase Notice in accordance with Section 15.03, as applicable. 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date~~ corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the Business Day immediately following the corresponding ~~interest payment is made~~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 any Redemption Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (PROS Holdings, Inc.)

Appears in 1 contract

Samples: Indenture (Five9, 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 ~~Issuer~~ 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 (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 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 (j) 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 Date occurs on or after ~~November~~ August 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2026 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November~~ August 15, ~~2025~~2026 or during a Redemption Period, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or applicable period, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ 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 for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption Notice or (y) on or after ~~November~~ August 15, ~~2025~~2026, no later than ~~November~~ August 15, ~~2025~~2026) and the Company shall indicate in such Settlement Notice the percentage of 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 ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the relevant deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to such conversion or during such period and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ 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 remainder, if any, of its Conversion ~~Obligation~~Obligation in excess of the aggregate principal portion of the Notes being converted as set forth herein. Prior to August 15, 2026 (other than during a Redemption Period), the Company may, at its election, by notice to Holders, the Trustee and the ~~Specified Dollar Amount~~ Conversion Agent (if other than the Trustee) in accordance with the provisions of this Indenture, elect to satisfy its Conversion Obligation with respect to all future conversions of Notes with a Conversion Date subsequent to the date of the delivery of such notice through any Cash Percentage specified in such notice per $1,000 principal amount of Notes to be converted (such election, an “Irrevocable Settlement Election”); provided that any such election that is made during a Redemption Period (but after the Redemption Notice Date) will not be applicable to conversions with Conversion Dates that occur during such Redemption Period. For the avoidance of doubt, such an irrevocable election, if made, shall be ~~equal~~ effective without the need to ~~$1,000~~amend this Indenture or the Notes, including pursuant to Section 10.01(1). ~~Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement~~However, the ~~relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer delivers a Settlement Notice electing Combination Settlement in respect of~~ Company may nonetheless choose to execute such an amendment at 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 $1,000option. (ivii) 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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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~~ (if applicable), 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 ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly and in any event within one Business Day following the last day of the Observation Period 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) 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 fractional shares of Common Stock, subject to Applicable Procedures. 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 ~~procedures of the Depositary~~ Applicable Procedures 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) (and ~~therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii)~~ in the case of a Physical Note or a Global Note not approved for processing through the Depositary, (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 thereof)~~ facsimile, PDF or other electronic transmission thereof (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 ~~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 ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall promptly notify the ~~Issuer~~ Company of any conversion pursuant to this Article ~~14 on the Conversion Date for such conversion~~14. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period~~, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ Company acting through its Common Stock 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~~sentence is paid. (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 ~~Issuer~~ 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~~Special Interest, if any, except as set forth below, and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~Special Interest. The ~~Issuer~~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~~Special Interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid ~~interest~~Special Interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes~~ Notes, whether into cash or into a combination of cash and shares of Common Stock, accrued and unpaid ~~interest~~ Special Interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such Notes as of the close of business on such ~~Regular~~ Special Interest Record Date ~~shall~~ will receive the full amount of ~~interest~~ Special Interest payable on such Notes on ~~the corresponding~~ such Special Interest Payment Date notwithstanding the conversion. However, 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~~converted on the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding Special Interest Record Date); provided that no such payment shall be required (1) for conversions following the ~~Regular~~ close of business on the Special Interest Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a ~~Redemption~~ Fundamental Change Repurchase Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Special Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a ~~Fundamental Change Repurchase~~ Redemption Date that is after a ~~Regular~~ Special Interest Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Special 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~~ Special Interest Record Date immediately preceding the Maturity ~~Date or~~ Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Special Interest Payment Date in cash regardless of whether their Notes have been ~~converted~~ converted, redeemed and/or repurchased, as applicable, following such ~~Regular~~ Special Interest Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion~~, if the Issuer has elected (or is deemed to have elected) Combination 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. (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth (i) the adjusted Conversion Rate, (ii) the subsection of this Section 14.04 pursuant to which such adjustment has been made, showing in reasonable detail the facts upon which such adjustment is based and (iii) the date as of which such adjustment is effective (which certificates shall be conclusive evidence of the accuracy of such adjustment absent manifest error). Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder (copying the Trustee and Conversion Agent). Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

Appears in 1 contract

Samples: Indenture (3d Systems Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November~~ March 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November~~ March 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) At any time prior to March 15, 2024, the Company may irrevocably elect Cash Settlement to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election, or irrevocably elect Combination Settlement and a Specified Dollar Amount (which amount shall be at least $1,000 per $1,000 principal amount of Notes) to satisfy its Conversion Obligation in respect of Notes to be converted after the date of such election. Upon making any election pursuant to this Section 13.02(a)(vi), the Company shall promptly (A) use its reasonable efforts to post information relating to such election on its website or otherwise publicly disclose such information, and (B) give written notice of such election to the Holders of the Notes. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.03. 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~~13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of ~~any other~~ Cash Settlement ~~Method~~or Combination Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 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 ~~14.04~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any ~~Redemption~~ Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Twitter, 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying to the converting Holder in cash the Principal Portion of Notes being converted and paying or ~~deliver~~delivering, as the case may be, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, to the converting ~~Holder~~Holder in respect of the remainder, if any, of the Conversion Obligation in excess of each $1,000 principal amount of Notes being converted. Pursuant to the foregoing sentence, the Company shall pay (and deliver, if applicable) to the converting Holder in respect of each $1,000 principal amount of Notes being converted, ~~cash (“Cash Settlement”), shares~~ a settlement amount equal to the sum of ~~Common Stock, together with cash, if applicable, in lieu~~ the Daily Settlement Amounts for each of delivering any fractional share of Common Stock in accordance with subsection (j) 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 14.02the 40 consecutive Trading Days during the relevant Observation Period. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after ~~November 15~~June 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same ~~Settlement Method~~Cash Percentage. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~June 1, 2025, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to a Cash Percentage, the Company shall deliver a written notice (the “Settlement Notice”) of the ~~relevant Settlement Method~~ Cash Percentage so elected in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (yii) on or after ~~November 15~~June 1, 2025, no later than ~~November 15~~the close of business on the Business Day immediately preceding June 1, 2025), and the Company will indicate in such notice the percentage (the “Cash Percentage”) of the excess, if any, of the Daily Conversion Value over the Daily Principal Portion of the Notes being converted that will be paid in cash, if any. If the ~~Issuer~~ Company does not timely elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in respect~~ a Cash Percentage of ~~its Conversion Obligation~~0%, and ~~the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and~~ will settle such excess 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 Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note 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 any taxes payable~~ (and, if required, pay all transfer or similar taxes, if any, as ~~described~~ set forth in Section 14.02(d) or and Section 14.02(e~~) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~)) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such shares of Common Stock 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period~~ Period. (k) If a Holder converts more than one Note on a Conversion Date, then the consideration due upon such conversion will (in the case of ~~Combination Settlement). For each Note surrendered for conversion~~any Global Note, if to the ~~Issuer has elected (or is deemed to have elected) Combination Settlement~~extent permitted by, and practicable under, the ~~full number~~ applicable procedures of ~~shares that shall be issued upon conversion thereof shall~~ the Depositary) be computed based on the ~~basis~~ total principal amount of ~~the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after~~ Notes converted on such ~~computation shall be paid in cash~~Conversion Date by that Holder.

Appears in 1 contract

Samples: Indenture (Middleby Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.04(b) and Section ~~14.07(a~~13.08(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025,~~ 2034 and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 November 15, ~~2025~~2034 or during a Redemption Period, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion ~~Date~~Date (or for conversions occurring on or after November 15, 2034 or during a Redemption Period, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Conversion Agent and the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant ~~Conversion Date~~ conversion date occurs (~~x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y~~1) on or after November 15, ~~2025~~2034, no later than the close of business on the Business Day immediately preceding November 15, ~~2025~~2034 or (2) during a Redemption Period, the related Notice of Redemption). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 procedures of the Depositary in effect at that time (any instruction to convert transmitted to the Depositary shall be irrevocable) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Specified Repurchase Date Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice or Specified Repurchase Date Notice in accordance with Section ~~15.03~~14.04. 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~~13.04(b) and Section ~~14.07(a~~13.08(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the ~~second~~ 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ Company or the 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 ~~Issuer~~ 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~~13.05, 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately~~ second business day following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately~~ second business day following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or and any Redemption Date or Fundamental Change Repurchase Date shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other corresponding Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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~~ Period, and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (Global Eagle Entertainment 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or~~ after ~~November 15, 2025~~the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~October 15, 2024, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ October 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the ~~Issuer~~ relevant Conversion Date occurs on or after October 15, 2024), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November~~ October 15, ~~2025~~2024, no later than ~~November~~ October 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding ~~sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement~~ sentence with respect to ~~such conversion and~~ any conversion, the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such 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 ~~Issuer~~ Company timely 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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~~ is 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption~~ Date shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Health Catalyst, Inc.)

Appears in 1 contract

Samples: Indenture (Nova Measuring Instruments 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, if the ~~Issuer~~ Company has not received Stockholder Approval prior to (x) in respect of a conversion of a Note for which the relevant Conversion Date occurs prior to the Final Period Date, the relevant Conversion Date and (y) in respect of a conversion of a Note for which the relevant Conversion Date occurs on or after the Final Period Date, the Final Period Date (the date set forth in clause (x) or clause (y), as the case may be, the “Stockholder Approval Deadline”), the Company shall satisfy its Conversion Obligation in respect of such Note (in the case of clause (x)) or in respect of all Notes for which the relevant Conversion Date occurs on or after the Final Period Date (in the case of clause (y)) by Stock Settlement. Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, if the Company has received Stockholder Approval prior to the relevant Stockholder 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, cash (“Cash Settlement”), 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 (“~~Physical~~ Stock 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. If the Company receives Stockholder Approval on any day, it shall so notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) prior to the close of business on the immediately following Business Day. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025, and all conversions for which~~ the ~~relevant Conversion~~ Final Period Date ~~occurs after the Issuer’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) All conversions occurring on a given Conversion Date that occurs prior to the Final Period Date shall be settled using the same Settlement Method. (iii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’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 occurring on or after ~~November 15, 2025~~the Final Period Date, the ~~Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion ~~Dates~~Dates (unless the Company has not received Stockholder Approval prior to the relevant Stockholder Approval deadline, in which case the Company shall be required to settle the relevant conversion by Stock Settlement). (~~iii~~iv) IfFollowing the Company’s receipt of Stockholder Approval, if, in respect of any Conversion Date occurring prior to the Final Period Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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~~ second 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November 15, 2025~~the Final Period Date, no later than ~~November 15, 2025~~the Final Period Date). If (a) the ~~Issuer~~ Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and (b) the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Stock Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of its Conversion ~~Obligation, and the~~ Obligation with a Specified Dollar Amount ~~per $1,000 principal amount of Notes shall be~~ equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar ~~Amount per $1,000 principal amount~~ Amount. If, in respect of ~~Notes. If~~ a conversion following the ~~Issuer~~ Company’s receipt of Stockholder Approval, 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. (ivv) The Company may, following receipt of Stockholder Approval and prior to the Final Period Date, at its option, irrevocably elect a Combination Settlement with a particular Specified Dollar Amount for all conversions subsequent to its notice by notice of such election to all Holders of Notes. (vi) With respect to any conversion, the cash, shares of Common Stock or combination of cash and shares of Common Stock due in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company has not received Stockholder Approval prior to the relevant Stockholder Approval Deadline or if the Company elects to satisfy its Conversion Obligation in respect of such conversion by ~~Physical~~ Stock Settlement, the ~~Issuer~~ 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 product of (vii) the aggregate principal amount of Notes to be converted, divided by $1,000, and (viii) the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related ~~Observation~~ Conversion Period. (vvii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the ~~Observation~~ Conversion Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer~~ The Company shall pay or deliver, as the case may be, through the Conversion Agent, the consideration due in respect of the Conversion Obligation (i) if the Company elects, or is required, to satisfy the Company’s Conversion Obligation by Stock Settlement, on the ~~second~~ third Business Day immediately following the relevant Conversion ~~Date, if the Issuer elects Physical Settlement~~ Date or (~~provided that for any Notes converted after the close of business~~ ii) on the ~~Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second~~ third Business Day immediately following the last Trading Day of the ~~Observation~~ Conversion Period, in the case of any other Settlement Method, provided that if prior to a relevant Conversion Date the Company’s Common Stock has been replaced by Reference Property consisting solely of cash, the Company shall pay the consideration due in respect of such Conversion Date on the third Business Day immediately following such Conversion Date, and notwithstanding the foregoing, no Conversion Period will apply to such conversions. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ 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 or delivered to a person other than the Holder 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~ after the close of business on any Regular Record Date but prior 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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~~As 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 ~~Date or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption~~ Date, and converting Holders will not be required to pay equivalent interest amounts. No other payment or adjustment will be made for accrued interest on a converted Note, other than as ~~applicable, regardless of whether their Notes have been converted following such Regular Record Date~~set forth in this Indenture. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of Physical~~ Company elects, or is required, to satisfy the related Conversion Obligation by Stock Settlement) or the last Trading Day of the relevant ~~Observation~~ Conversion Period (in if the ~~case of~~ Company satisfies 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of ~~Physical~~ Stock Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant ~~Observation~~ Conversion Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and elected ~~(or is deemed to have elected)~~ Combination 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~~ applicable Conversion Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (LGI Homes, 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November~~ March 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2029 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the ~~Issuer~~ relevant Conversion Date occurs on or after March 15, 2029), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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~~ conversion for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) on or after ~~November~~ March 15, ~~2025~~2029, no later than ~~November~~ the close of business on the Business Day immediately preceding March 15, ~~2025~~2029). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of its Conversion ~~Obligation,~~ Obligation and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the ~~Issuer~~ Company timely 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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~~ is 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation through Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate for any accrued and unpaid interest on ~~any converted~~ the Notes. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether such 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 close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Trading Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be~~ treated as the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Varonis Systems Inc)

Appears in 1 contract

Samples: Indenture (Camtek 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November~~ October 15, ~~2025, and all conversions for which the relevant Conversion Date~~ 2024 or occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November~~ October 15, ~~2025~~2024 or occurs during a Redemption Period, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions occuring with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) ~~If,~~ If the Company elects a Settlement Method in respect of ~~any~~ a Conversion ~~Date~~Date (or in respect of conversions occurring on or after October 15, 2024 or during a Redemption Period, as the case may be), the ~~Issuer elects to~~ Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or in respect of conversions ocurring on or after October 15, 2024 or during a Redemption Period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be), to the ~~Holders with a copy to the Trustee and~~ Trustee, the Conversion Agent (if other than the Trustee) and converting Holders no later ~~than~~ than: (A) if the relevant Conversion Date occurs prior to October 15, 2024, the close of business on the Trading Day immediately following the relevant Conversion ~~Date~~ Date; (orB) subject to clause (C) immediately below, ~~in the case of any conversions for which~~ if the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November~~ October 15, ~~2025~~2024, no later than ~~November~~ the close of business on October 15, ~~2025~~2024; and (C) if the relevant Conversion Date occurs during a Redemption Period (including any redemption that occurs on or after October 15, 2024). , the Redemption Notice Date. (iv) If the ~~Issuer~~ Company does not elect a Settlement Method prior to the applicable deadline set forth in ~~the immediately preceding sentence~~clause (iii) above, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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, in each case, in respect of such Conversion Date. 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 ~~Issuer~~ Company timely 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 be permitted to irrevocably 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 Dates that occur from the date of the Certain Distributions Notification until the related Certain Distributions Conversion Period End Date. (ivv) 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 ~~any taxes payable as described in Section 14.02(d~~(5) if required, pay all transfer or ~~Section 14.02(e)~~similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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: First Supplemental Indenture (Guidewire Software, Inc.)

Appears in 1 contract

Samples: First Supplemental Indenture (Acorda Therapeutics 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 25 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 (j) 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 Date occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2025 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November~~ December 15, 2025, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs on or after December 15, 2025), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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 of Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November~~ December 15, 2025, no later than ~~November~~ December 15, 2025) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ 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 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (43) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareowner of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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 (Alliant Energy Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~the case may be, as described below. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November 15~~February 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2020, shall be settled using the same Settlement Method~~. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect~~ . Prior to ~~the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November 15~~February 1, ~~2025~~2020, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates~~. (iii) If, in respect of any Conversion Date~~. If the Company elects a Settlement Method, the ~~Issuer elects~~ Company shall inform converting Holders in writing, through the Trustee upon its receipt of a written instruction from the Company to ~~deliver a notice~~ send such notification, of the Settlement Method it has selected (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November 15~~February 1, ~~2025~~2020, no later than ~~November 15~~the close of business on the Scheduled Trading Day immediately preceding February 1, ~~2025)~~2020. If the ~~Issuer~~ Company does not so elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected Combination Settlement in respect of to its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall~~ will be equal to $1,000. ~~Such Settlement Notice shall specify~~ If the ~~relevant Settlement Method and in the case of an election of~~ Company elects Combination Settlement, ~~the relevant Settlement Notice shall indicate~~ but does not timely notify converting holders of the Specified Dollar Amount per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000. If At any time on or prior to the ~~Issuer delivers~~ 42nd scheduled Trading Day prior to the Maturity Date, the Company may irrevocably elect (a “Net Share Settlement ~~Notice electing~~ Election”) to satisfy the conversion obligation with respect to any Notes to be converted after the date of such election through Combination Settlement ~~in respect of its Conversion Obligation but does not indicate~~ with a Specified Dollar Amount of $1,000 per $1,000 principal amount of ~~Notes in such~~ Notes. The Company may make a Net Share Settlement ~~Notice~~Election at its sole discretion without the consent of the Holders. Upon making a Net Share Settlement Election, the ~~Specified Dollar Amount per $1,000 principal amount~~ Company will promptly (i) use reasonable efforts to post such information on its website or otherwise publicly disclose such information and (ii) provide written notice to the Holders by mailing such notice to Holders at their address in the Register (in the case of ~~Notes shall be deemed to be $1,000~~a Physical Note), or through the facilities of the Depositary (in the case of a Global Note). (ivii) 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 If the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the ~~Issuer shall~~ Company will deliver to ~~the~~ converting ~~Holder~~ holdings in respect of each $1,000 principal amount of ~~Notes~~ notes being converted a number of shares of the Company’s Common Stock equal to the Conversion ~~Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein)~~Rate; (B) if If the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Issuer shall~~ Company will pay to ~~the~~ converting ~~Holder~~ holders in respect of each $1,000 principal amount of ~~Notes~~ 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~~ in the ~~related~~ relevant Observation Period; and (C) if If the ~~Issuer~~ Company elects (or is deemed to have elected) ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Issuer shall~~ Company will pay or deliver, as the case may be, to converting holders in respect of each $1,000 principal amount of Notes being ~~converted,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days ~~during~~ in the ~~related~~ relevant Observation Period. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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~~13.02(h) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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) and Section 14.07(a), the Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method; provided that, for any Conversion Date on or after February 1, 2020 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 Issuer 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, ~~the relevant~~ such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption~~ and the Fundamental Change Repurchase Date ~~shall~~ described in (1) and (2) of this paragraph will receive the full interest payment due on the Maturity Date or ~~such Redemption~~ other applicable Interest Payment Date~~, as applicable~~, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~for~~ on the ~~relevant Conversion Date (~~Last Trading Day of the applicable Observation Period, or, in the case of Physical Settlement~~) or~~ , based on the ~~Daily~~ daily VWAP ~~for the last Trading Day of~~ on the relevant ~~Observation Period (in the case of Combination Settlement)~~Conversion Date. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Portfolio Recovery Associates 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, the ~~Issuer~~ 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~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Shares in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Shares in accordance with subsection (j‎(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), ~~at its election,~~ as set forth in this ~~Section~~ ‎Section 14.02, at its election; provided that, in respect of conversions of any Notes called for Optional Redemption (including, for the avoidance of doubt, any such Notes deemed called for Optional Redemption pursuant to ‎Section 17.02(d)) or Tax Redemption, in each case, for which the relevant Conversion Date occurs during the related Redemption Period, the Company shall not have the right to elect Cash Settlement or Combination Settlement, and the Company shall be deemed to have elected Physical Settlement in the related Optional Redemption Notice or Tax Redemption Notice, as the case may be. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2028 shall be settled using the same Settlement Method, and, for the avoidance of doubt, all conversions of Notes called for Optional Redemption (including, for the avoidance of doubt, any such Notes deemed called for Optional Redemption pursuant to ‎Section 17.02(d)) or Tax Redemption, in each case, for which the relevant Conversion Date occurs during the related Redemption Period shall by settled by Physical Settlement. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2028, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to converting Holders on the ~~Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ Trading Day, no later than the close of ~~business on the Trading Day~~ business, 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after November 15, ~~2025~~2028, no later than November 15, ~~2025~~2028). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical 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~~. ~~Such Settlement Notice shall specify the relevant Settlement Method and in~~ 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~~Amount. If the ~~Issuer~~ 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. Each Optional Redemption Notice or Tax Redemption Notice, as the case may be, shall specify that the Company shall settle any conversions for which the relevant Conversion Date occurs during the related Redemption Period by Physical Settlement. (iv) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Shares equal to the Conversion Rate in effect on the relevant Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Shares, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of~~ Common ~~Stock~~Shares. 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 procedures of the ~~Depositary~~ Depository 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 any applicable transfer or similar taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) in the case of a Physical Note (1) ~~complete,~~ complete and manually sign ~~and deliver an irrevocable~~ a notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”), (2) at deliver to the office of the Conversion Agent ~~or by facsimile~~ the Notice of Conversion (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~~ and such Notes, duly endorsed to the ~~Issuer~~ Company or in blank (~~and accompanied by appropriate endorsement and transfer documents~~at which time such conversion will become irrevocable)~~, at the office of the Conversion Agent~~, (3) if required, furnish appropriate ~~endorsements~~ endorsement and transfer documents and (4) 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 any ~~taxes payable as described in Section 14.02(d)~~ applicable transfer or ~~Section 14.02(e)~~similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~shares of~~ Common ~~Stock~~ Shares are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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~~ Shares to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depository, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~ 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~~ Hxxxxx 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 ~~Issuer~~ 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 ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid interest on any of the converted Notes. The ~~Issuer~~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, up to, but ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, up to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted 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 ~~Issuer~~ Company has specified a an Optional Redemption Date or Tax Redemption Date, as the case may be, that is after a Regular Record Date and on or prior to the ~~Business~~ second Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 following the ~~date on which the~~ corresponding ~~interest payment is made~~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~~Notes. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or and any Optional Redemption Date, Tax Redemption Date or Fundamental Change Repurchase Date described in the proviso to the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any shares of~~ the Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ 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 Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional ~~share of~~ Common ~~Stock~~ Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Shares 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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~~ Common Shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (BLACKBERRY LTD)

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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2035 or during the period from, and including, December 15, 2021 to the close of business on the Business Day immediately preceding March 15, 2022, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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~~Method (but the Company may elect different Settlement Methods for different periods referred to in this sentence). (ii) Except for (A) any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption Date, (B) any conversions for which the relevant Conversion Date occurs during the period from, and including, December 15, 2021 to the close of business on the Business Day immediately preceding March 15, 2022 and (C) any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2035, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption ~~Notice~~ Notice, (y) during the period from, and including, December 15, 2021 to the close of business on the Business Day immediately preceding March 15, 2022, no later than December 15, 2021 or (yz) on or after ~~November~~ December 15, ~~2025~~2035, no later than ~~November~~ December 15, ~~2025~~2035). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon ~~conversion~~conversion (which for the avoidance of doubt shall not include any capital gains, income, withholding or similar taxes), 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 (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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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) for conversions following the Regular Record Date immediately preceding March 15, 2022; (3) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (34) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (45) 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (CSG Systems International Inc)

Appears in 1 contract

Samples: Indenture (Tandem Diabetes Care Inc)

Appears in 1 contract

Samples: Indenture (Incyte Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~11.02, Section ~~14.03(b~~11.03(b) and Section ~~14.07(a~~11.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 11.02 (“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~~ 11.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~11.02. (i) All conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025,~~ 2024 and all conversions for which the relevant Conversion Date occurs after the ~~Issuer’s~~ issuance of a Notice of Redemption ~~Notice with respect to the Notes~~ and prior to the related Redemption ~~Date,~~ Date shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the ~~Notes~~ Notes, but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different ~~Conversion Dates~~Trading Days. (iii) If, in respect of any Conversion ~~Date~~Date (or in respect of one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) after the date of issuance of a Notice of Redemption ~~Notice with respect to the Notes~~ and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after November 15, ~~2025~~2024, no later than the close of business on the Scheduled Trading Day immediately preceding November 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~11.02(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 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~~11.02(h) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 11.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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.and

Appears in 1 contract

Samples: First Supplemental Indenture (Opko 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 April 1, 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~April 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~April 1, ~~2025~~2023, no later than ~~November 15~~April 1, ~~2025~~2023). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion or during such period, and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. By written notice to the Trustee and all Holders, the Company may, prior to April 1, 2023, at its option, irrevocably elect (including by supplemental indenture in accordance with Section 10.01(i)) 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and ~~any taxes payable~~ (5) if required, pay all transfer or similar taxes, if any, as ~~described~~ set forth in ~~Section 14.02(d) or~~ Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 surrendered for conversion by a Holder ~~thereof~~ thereof, if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Physical 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 ~~Issuer~~ 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 for conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate to account for any accrued and unpaid interest on ~~any converted~~ the Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Boingo Wireless Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02, Section 14.03(b)~~ 14.02 and Section ~~14.07(a~~14.06(a), upon conversion of any Note, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 ~~Date~~ Dates occurs (x) on or after November 15, ~~2025, and all conversions for which~~ 2027 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 15, 2027), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 15, ~~2025~~2027, no later than the close of business on Scheduled Trading Day immediately preceding November 15, ~~2025~~2027) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical 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~~. 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 ~~Issuer~~ Company timely 56 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. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to November 15, 2027, 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 at least $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such election, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant Settlement Method Election Deadline, or, if the Company does not timely notify Holders, the Trustee and the Conversion Agent (if other than the Trustee), such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. The irrevocable election will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such election will affect any settlement method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes. However, the Company may nonetheless choose to execute such an amendment at its option. If the Company irrevocably fixes the Settlement Method pursuant to this Section 14.02(a)(iii), then, concurrently with providing notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such election, the Company shall either post the fixed settlement method 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein);~~ Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 57 each of the 40 30 consecutive Trading Days during the related Observation Period; ~~and~~ and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 58 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~~14.06(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ such 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~~14.03, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date.principal (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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. 60 Section 14.03.

Appears in 1 contract

Samples: Indenture (Pacific Biosciences of California, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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~~applicable, cash (“Cash Settlement”), 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~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at ~~its~~ the Company’s election, as ~~set forth in this Section 14.02~~described below. (i) All conversions ~~for which the relevant~~ with a Conversion Date ~~occurs~~ occurring on or after ~~November 15~~March 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2023, shall be settled using the same Settlement Method~~. (ii) Except for any~~ . For all conversions ~~for which the relevant~~ with a Conversion Date ~~occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes but~~ occurring prior to ~~the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November 15~~March 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. . However, notwithstanding anything to the contrary in this clause (~~iii~~i), if the Company calls any Notes for redemption, then (x) Ifthe Company will specify in the related Redemption Notice the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the Redemption Notice Date and before the related Redemption Date; and (y) if the related Redemption Date is on or after March 1, ~~in respect of any~~ 2023, then such Settlement Method must be the same Settlement Method that applies to all conversions with a Conversion ~~Date~~Date that occurs on or after March 1, 2023. If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date~~Company shall notify converting Holders, ~~the Issuer shall deliver such Settlement Notice in writing to the Holders with a copy to~~ the Trustee and the Conversion Agent (if other than the Trustee), in writing, of the Settlement Method it has selected (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 ~~for which the relevant~~ with a Conversion Date ~~occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November 15~~March 1, ~~2025~~2023, no later than ~~November 15~~the open of business on March 1, ~~2025~~2023). If the ~~Issuer~~ Company does not timely elect a Settlement Method ~~prior to~~ as provided in this clause (i), then the ~~deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected the Default Settlement Method. If the Company timely elects Combination Settlement in with respect ~~of its Conversion Obligation~~to a conversion but does not timely elect the applicable Specified Dollar Amount, ~~and~~ then the Specified Dollar Amount ~~per~~ for such conversion will be deemed to be $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If For the ~~Issuer delivers~~ avoidance of doubt, the Company’s failure to timely elect a Settlement ~~Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a~~ Method or specify the applicable 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~~will not constitute a Default. (ivii) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of each $1,000 principal amount of Notes (the “Settlement Amount”) shall be computed as follows: (A) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Physical ~~Settlement~~Settlement applies, ~~the Issuer shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted~~ a number of shares of the Company’s Common Stock equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock in accordance with subsection (j) of this Section 13.02); (B) ~~if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by~~ If Cash ~~Settlement~~Settlement applies, ~~the Issuer 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 VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period; and (C) ~~if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by~~ If Combination ~~Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted~~Settlement applies, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days ~~during~~ in the ~~related~~ relevant Observation Period. (viii) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the applicable Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(e), ~~before any Holder of a Note shall be entitled~~ to convert a Note as set forth above, ~~such~~ the Holder thereof shall (i) in the case of a Global Note, comply with the 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~~13.02(h) and, if required, pay all transfer and similar taxes, if any ~~taxes payable~~ as ~~described~~ provided in ~~Section 14.02(d~~Sections 13.02(d) or ~~Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights)~~ 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date ~~to which such Holder is not entitled~~ as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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~~ described in ~~Section 14.03(b)~~ Sections 13.03, 13.04, and ~~Section 14.07(a)~~13.07, the ~~Issuer~~ Company shall pay or deliver, as ~~the case may be~~applicable, the consideration due in respect of the Conversion Obligation as follows: (i) if Cash Settlement or Combination Settlement applies, on or before the ~~second Business Day immediately following the relevant Conversion Date~~third (or, if the ~~Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record~~ T+2 Effective Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following has occurred by the last VWAP Trading Day of the Observation Period for such conversion, the second) Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies, in on or before the ~~case of any other Settlement Method~~third (or, if the T+2 Effective Date has occurred by the Conversion Date for such conversion, the second) Business Day immediately after such Conversion Date. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 Issuer 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, ~~the relevant~~ such Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of the Company’s Common Stock, such accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the date on which the corresponding interest payment is made~~such Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a such Regular Record Date and on or prior to the Business Day immediately following ~~the date on which the corresponding interest payment is made~~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~~ Notes at the close of business on the Regular Record Date immediately preceding the Maturity Date, the Redemption Date or ~~any Redemption~~ the Fundamental Change Repurchase Date ~~shall~~ described in (1), (2) and (3) of this paragraph will receive the full interest payment due (accrued to the next Interest Payment Date) on the ~~Maturity Date or such Redemption~~ next Interest Payment Date~~, as applicable~~, regardless of whether their Notes have been ~~converted~~ converted, redeemed or repurchased following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~for~~ on the ~~relevant Conversion Date (~~last VWAP Trading Day of the applicable Observation Period, or, in the case of Physical Settlement~~) or~~ , based on the ~~Daily~~ daily VWAP ~~for the last Trading Day of~~ on the relevant ~~Observation Period~~ Conversion Date (in or, if such Conversion Date is not a VWAP Trading Day, the ~~case of Combination Settlement~~immediately preceding VWAP Trading Day). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Pra Group 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), (i) upon ~~conversion of any Note~~a Make-Whole Fundamental Change Conversion, a Redemption Conversion or a Maturity Conversion, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash~~ a “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 60 Trading Days during the relevant Observation Period for such Note or (ii) upon any conversion other than a Make-Whole Fundamental Change Conversion, a Redemption Conversion or a Maturity Conversion, in respect of each $1,000 principal amount of Notes being converted, the Company shall satisfy its Conversion Obligation by delivering to the converting Holder $1,000 principal amount of a newly issued series of the Company’s non-convertible junior subordinated notes (the “~~Cash Settlement~~Underlying Junior Subordinated Notes”)) issued pursuant to the Underlying Junior Subordinated Notes Indenture and a “Settlement Amount” equal to the sum of Daily Settlement #98368004v14 Amounts for each of the 60 Trading Days during the relevant Observation Period for such Note, ~~shares of Common Stock~~in each case, 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 (“Physical Settlement”) or a combination of cash and shares of Common Stock~~14.02, 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 on the ~~relevant Conversion Date occurs on or after November 15, 2025, and all conversions for which~~ second Business Day immediately following the relevant Conversion Date occurs after the Issuer’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 for which the relevant Conversion Date occurs after the Issuer’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 November 15, 2025, the Issuer shall use the same Settlement Method for all conversions with the same Conversion Date, but the Issuer shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date, the Issuer elects to deliver a notice (the “Settlement Notice”) last Trading Day of the relevant ~~Settlement Method in respect of such Conversion Date~~Observation Period; provided, however, that the ~~Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ any Underlying Junior Subordinated Notes due upon conversion to ~~the~~ converting 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~~ second Business Day immediately following the relevant Conversion ~~Date (or, in~~ Date. Any Underlying Junior Subordinated Notes delivered upon conversion of 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 prior to the related Redemption Date, in such Redemption Notice or (y) on or after November 15, 2025, no later than November 15, 2025). If the Issuer does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer 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. Such Settlement Notice shall specify the relevant Settlement Method and~~ represented by Underlying Junior Subordinated Notes in global form registered 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 Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 name of the ~~Daily Conversion Values for each~~ Depositary or a nominee of the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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) Depositary. The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 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 ~~Issuer~~ 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 or and the Daily Conversion ~~Values, as the case may be,~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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~~registered and include wiring instructions for any cash payments owed to such Holder, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on or as promptly as reasonably practicable following 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03. #98368004v14 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock or Underlying Junior Subordinated Notes are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 and/or aggregate principal amount of Underlying Junior Subordinated Notes to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 and/or Underlying Junior Subordinated Notes upon conversion, unless the tax is due because the Holder requests ~~any~~ such shares and/or Underlying Junior Subordinated Notes 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 and/or Underlying Junior Subordinated Notes 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.. #98368004v14 (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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of ~~the~~ any cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue interest or Deferred Interest (other than Deferred Interest that will be paid on such Interest Payment Date), if ~~any Defaulted Amounts~~ such overdue interest or Deferred 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. Notwithstanding anything to the contrary, if the last day of the Make-Whole Fundamental Change Period for any Make-Whole Fundamental Change Conversion falls on any day during an Optional Deferral Period, accrued and unpaid Deferred Interest (including, to the extent permitted by applicable law, any Compound Interest) on such Notes through, but excluding, the immediately preceding Interest Payment Date (or, if such last day occurs after the close of business on a Regular Record Date but prior to the related Interest Payment Date, to, but excluding, such Interest Payment Date) shall be paid on such Conversion Date to the Person(s) entitled to receive the consideration due upon conversion of such Notes. For the avoidance of doubt, any Deferred Interest due to a converting Holder upon the conversion of such Notes shall be calculated by the Company, and the Trustee and the Conversion Agent (if other than the Trustee) may conclusively rely on such calculation. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to~~ treated as a stockholder of record as of the close of business on the last Trading Day of the relevant Observation Period. The Person in whose name any Underlying Junior Subordinated Notes shall be ~~the~~ issuable upon conversion shall be treated as a holder of record of such ~~shares~~ Underlying Junior Subordinated Notes as of the close of business on the relevant Conversion Date. In addition, if, in respect of any conversion other than a Make-Whole #98368004v14 Fundamental Change Conversion, a Redemption Conversion or a Maturity Conversion, the Conversion Date ~~(in~~ occurs after a Regular Record Date for the ~~case of Physical Settlement) or~~ Notes but prior to the ~~last Trading Day of~~ corresponding Interest Payment Date, the relevant ~~Observation Period (in the case of Combination Settlement),~~ converting Holder shall be treated as the ~~case may be~~record holder of such Underlying Junior Subordinated Notes on the corresponding regular record date for the Underlying Junior Subordinated Notes. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay or cause to be paid 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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. (k) The Underlying Junior Subordinated Notes, if any, issuable upon conversion of the Notes shall be issued pursuant to the Underlying Junior Subordinated Notes Indenture, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Any Underlying Junior Subordinated Notes issued upon conversion of the Notes shall have, at issuance, an amount of accrued but unpaid interest (including Deferred Interest, if any) equal to the amount of accrued but unpaid interest (including Deferred Interest, if any) on such converted Notes, as calculated by the Company and provided in writing to the Trustee and Conversion Agent (if different from the Trustee) and provided to any Holder of Notes upon the request of that Holder.

Appears in 1 contract

Samples: Indenture (PNM Resources Inc)

Appears in 1 contract

Samples: Indenture (Aerojet Rocketdyne 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 April 1, 2029 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~April 1, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ occurring on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to a Settlement Method, the Company shall deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice~~ case may be) in writing to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November 15~~April 1, ~~2025~~2029, no later than ~~November 15~~April 1, ~~2025~~2029). Delivery of such Settlement Notice is irrevocable. If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. If the Company calls any Notes for redemption pursuant to Article XVI, and the related Redemption Date is on or after April 1, 2029 (x) if the date of the relevant Redemption Notice occurs prior to the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after April 1, 2029, then, in respect of all conversions with a Conversion Date occurring on or after April 1, 2029, the Company must elect the Settlement Method that the Company elected (or was deemed to have elected) in such Redemption Notice and (y) if the date of such Redemption Notice occurs on or after the date the Company elects (or is deemed to have elected) a Settlement Method in respect of all conversions with a Conversion Date occurring on or after April 1, 2029, then, the Company must elect in such Redemption Notice the Settlement Method that the Company elected (or was deemed to have elected) in respect of all conversions with a Conversion Date occurring on or after April 1, 2029. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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~~Period (plus cash in lieu of any fractional share). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, and in any event within one (1) Business Day following the ~~Issuer~~ last day of the Observation Period, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of its determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common ~~Stock~~Stock and the calculation thereof in reasonable detail or in such detail as requested by the Depositary. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (bvi) ~~Subject~~ At any time prior to ~~Section 14.02(e)~~April 1, ~~before any Holder of a Note shall be entitled~~ 2029, the Company may irrevocably elect to ~~convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply~~ satisfy its Conversion Obligation with the 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice respect to the ~~Conversion Agent as set forth in~~ Notes to be converted after the ~~Form~~ date of ~~Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at~~ such election by delivering cash up to the ~~office of the Conversion Agent or by facsimile and state in writing therein the~~ aggregate principal amount of Notes to be ~~converted~~ converted, and ~~the name or names (with addresses) in which such Holder wishes the certificate or certificates for any~~ shares of the Common ~~Stock to be delivered upon settlement of the Conversion Obligation to be registered~~Stock, ~~(2) surrender such Notes, duly endorsed to the Issuer~~ cash 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a ~~Holder~~ combination thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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~~remainder, if ~~the Issuer elects Physical Settlement (provided that for any Notes converted after the close~~ any, of ~~business on the Regular Record Date immediately preceding the Maturity Date~~its Conversion Obligation. Upon making such election, the ~~Issuer~~ Company shall ~~deliver~~ promptly (x) provide written notice to the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer shall issue or cause to be issued,~~ Trustee 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee) and (y) issue a report on Form 8-K or press release or publish on its website to announce that the Company has made such an election. (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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (Solaredge 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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~~Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Shares 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 Date occurs ~~on or after November 15, 2025~~during a Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after the ~~Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption~~ Free Conversion Date, shall be settled using the same Settlement ~~Method~~Method and in the same proportions of cash and/or Shares during the respective periods. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date and~~ Period, any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~the Free Conversion Date, ~~2025~~and except to the extent the Company elects Physical Settlement to apply pursuant to Section 14.01(b)(ii), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion ~~Date~~Date and in the same proportions of cash and/or Shares during the respective periods, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after the Free Conversion Date), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice in writing to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November 15, 2025~~the Free Conversion Date, no later than ~~November 15, 2025~~the day before the Free Conversion Date). If the ~~Issuer~~ Company does not elect a Settlement Method with respect to a Conversion Date prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical 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~~. 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~~Amount. If the ~~Issuer~~ 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~~Amount, the Specified Dollar Amount ~~per $1,000 principal amount of Notes~~ shall be deemed to be $1,000. For the avoidance of doubt, any failure to select a Settlement Method or specify the applicable Specified Dollar amount shall not constitute a Default or an Event of Default. (iv) The cash, ~~shares of Common Stock~~ Shares or combination of cash and ~~shares of Common Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Shares equal to the Conversion Rate in effect on the Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of ~~Common Stock~~Shares, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~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~~ Depositary, the Transfer Agent and the US Co-Share Transfer Agent 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) ), and (ii) in the case of a ~~Physical Note~~ Definitive Note, or if the conversion occurs prior to the Shares being fully DTC FAST eligible (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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~15.03(a). 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~~ paragraph (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any ~~shares of Common Stock~~ Shares are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 in the case of Global Notes, in book-entry format through the Depositary, in the case of Definitive Notes, in certificated form, in each case, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any certificated/physical Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ Company or the 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax imposed by any Relevant Taxing Jurisdiction due on the ~~issue~~ issuance of any ~~shares of Common Stock~~ Shares upon conversion, unless the tax is due because the Holder requests ~~any~~ such ~~shares~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of Common Stock~~Shares, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~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 as of the Regular Record Date immediately preceding the Maturity Date, a Fundamental Change Repurchase Date or ~~any~~ a Redemption Date shall receive the full interest payment due on the ~~Maturity~~ corresponding Interest Payment Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date, and no equivalent payment is required by the converting Holder. If a Holder converts Notes, the Company will pay any documentary, stamp or similar issue or transfer tax imposed by any Relevant Taxing Jurisdiction due on any issuance of any Shares upon the 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 will pay that tax. (i) The Person in whose name ~~any shares of Common Stock delivered~~ the Shares shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ 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 Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of ~~Common Stock~~ Shares upon conversion of the Notes and shall instead pay cash in U.S. Dollars in lieu of delivering any fractional share of ~~Common Stock~~ Shares 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination Settlement, the full number of ~~shares~~ 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 (Silvercorp Metals 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, the ~~Issuer~~ 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, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 50 Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) 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 ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 November 15, 2027, shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 November 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company (or the Trustee, upon the written request of the Company) shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (yii) on or after November 15, ~~2025~~2027, no later than November 15, ~~2025~~2027) and the Company shall indicate in such 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 ~~Issuer does~~ relevant Holders are not ~~elect~~ informed of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion and~~ Percentage, the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ a Cash Percentage of 0% and the Company shall settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number~~ as set forth herein (subject to Section 14.02(j)). At the time that the Company informs the Holders of ~~shares of Common Stock equal~~ any election pursuant to the ~~Conversion Rate in effect on~~ second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion ~~Date~~ Agent (if other than the Trustee). For the avoidance of doubt, failure to deliver a Settlement Notice to the Trustee or the Conversion Agent (if other than the Trustee) shall not affect the right of the Company to elect a Cash Percentage or the validity or sufficiency of any such election made in accordance with the second and ~~cash in lieu of fractional shares as provided herein);~~third immediately preceding sentences. (Bii) ~~if the Issuer elects to satisfy its Conversion Obligation in respect~~ For any conversion of ~~such conversion by Cash Settlement~~Notes, the ~~Issuer shall pay to~~ Daily Settlement Amounts, the ~~converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of~~ Daily Net Settlement Amounts, the Daily Conversion Values ~~for each of~~ and the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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) ~~and any taxes payable as described in Section 14.02(d)~~ if required, pay all transfer or ~~Section~~ similar taxes, if any, pursuant to ‎Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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 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 ~~Issuer~~ 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date ~~shall~~ described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, receive the full interest payment due on the Maturity Date or ~~such Redemption~~ the applicable Interest Payment Date, as ~~applicable~~the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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~~ related Observation ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion~~, if the Issuer has elected (or is deemed to have elected) Combination 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 (Integer Holdings Corp)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section 14.02, Section 14.03(b) and Section ~~14.07(a~~14.08(a), upon conversion of any Note, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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~~Class A Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Class A Ordinary Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Class A Ordinary Shares, together with cash, if applicable, in lieu of delivering any fractional ~~share of Common Stock~~ Class A Ordinary Shares 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 of Called Notes for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~September 1, 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or has previously made an irrevocable election with respect to all subsequent conversions of Notes pursuant to Section 14.02(a)(iii), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after September 1, 2029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or either such period, as the case may be), the ~~Issuer~~ Company, shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to~~ converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with Section 17.15, no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of (x) any ~~conversions~~ conversion of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such~~ the relevant Redemption ~~Notice or~~ Notice, (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2029, no later than ~~November 15~~September 1, ~~2025~~2029, or (z) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in a notice as described in such Section). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to any such ~~conversion~~ Conversion Date or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of its Conversion Obligation~~, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion ~~Obligation~~ Obligation, or the Company is deemed to have elected Combination Settlement, 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to September 1, 2029. In addition, by notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 1, 2029, at its option, irrevocably elect to fix the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such notice. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant deadline for election of a Settlement Method as described in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the Settlement Notice or, if no specific amount was set forth in the Settlement Notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election will apply to all conversions of Notes on Conversion Dates occurring subsequent to delivery of such Settlement Notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. 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 the provisions described in Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method pursuant to the provisions described in the preceding paragraph, then, concurrently with providing a Settlement Notice to Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company will post notice of the Default Settlement Method on its website or otherwise disclose such information in a Current Report on Form 6-K or 8-K that is filed with the Commission. (iv) The cash, ~~shares of Common Stock~~ Class A Ordinary Shares or combination of cash and ~~shares of Common Stock~~ Class A Ordinary Shares payable or deliverable by the Company in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: : (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Class A Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly immediately after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (Bitdeer Technologies Group)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2027, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but on or prior to the second Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2027, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) IfSubject to clauses (i) and (ii) above, if, in respect of any Conversion Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~September 1, ~~2025~~2027, no later than ~~November 15~~September 1, ~~2025~~2027). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. The Company may, prior to September 1, 2027, at its option, irrevocably fix the Settlement Method or the Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or elect Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, for all conversions for which the relevant Conversion Date occurs subsequent to such notice, by notice of such election to all Holders. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes. 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice or Put Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice or Put Notice in accordance with Section ~~15.03~~14.02 or Section 14.05, as applicable. A Holder’s exercise of its conversion rights shall be irrevocable. 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~~13.03(b), Section 13.04(f) ~~and~~ or Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Repurchase Event Repurchase Date for a Fundamental Change or Par Repurchase ~~Date~~ Event that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) above, and any Repurchase Event Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects (or is deemed to elect) 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Gannett Co., 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, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“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 ~~subsection (j~~Section 14.02(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 Date occurs on or after ~~November 15~~January 1, ~~2025,~~ 2023 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ Tax Redemption, and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November 15~~January 1, ~~2025~~2023 or after the date of the issuance of a Notice of Tax Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, the ~~Issuer~~ Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. By notice to Holders of the Notes, the Company may, prior to January 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 $1,000 for all Conversion Dates occurring subsequent to delivery of such notice. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ 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 (A) in the case of any conversions for which the relevant Conversion Date occurs on or after January 1, 2023, no later than January 1, 2023 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ 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. ~~Such~~ If the Company has timely elected Combination Settlement ~~Notice shall specify~~ in respect of any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 Issuer 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. (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ 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~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 hereby) so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the ~~Issuer~~ 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~~ 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 Section 14.02(e~~To convert a beneficial interest in a Global Note (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 ~~procedures of the Depositary in effect at that time and,~~ 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); 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 thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent or by facsimile~~ 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 Issuer 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; (4C) 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer 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 surrendered~~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 (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Cash Settlement ~~Method~~or if the Company elects or is deemed to elect Combination Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~conversion of such Note, 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 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date 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~~converted 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 ~~Issuer~~ Company has ~~specified~~ called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue 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 and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ 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 Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ 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 ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects or is deemed to elect Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination 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 (Carnival PLC)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~9.02, Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (ji) of this Section ~~14.02~~ 9.02 (“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 (ji) of this Section ~~14.02~~ 9.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~9.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2020, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2020, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or (x) in respect of all conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption but prior to the related Redemption Date and (y) in respect of all conversions occurring during the period on or after June 15, 2020), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or either such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice to converting Holders, in ~~writing to~~ accordance with Section 14.03 of the ~~Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ Base Indenture, no later than the close of business on the 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 prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November~~ June 15, ~~2025~~2020, no later than ~~November~~ June 15, ~~2025~~2020). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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~~Amount. If the ~~Issuer~~ 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. (iv) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 30 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~9.02(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, the beneficial owner thereof shall 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights9.02(g) and (ii) in the case of a Physical ~~Note~~ Note, the Holder thereof shall (1) complete, manually sign and deliver an irrevocable notice or facsimile thereof to the Conversion Agent as set forth in the Form of Notice of Conversion (~~or a facsimile thereof) (~~a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~9.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 9 on the Conversion Date for such conversion. No ~~Notice of Conversion with respect to any~~ Holder may surrender Notes ~~may be surrendered by a Holder thereof~~ for conversion if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~10.02 (or, in the case of a Global Note, if such Holder has requested a repurchase of Notes pursuant to Section 10.01 but has not withdrawn such request pursuant to Section 10.02, in each case, in compliance with the applicable procedures of the Depositary). If more than one Note shall be surrendered for conversion at one time by the same Holder, the ~~Conversion Obligation~~ Settlement Amount 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~~ Subject to Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ 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 ~~Issuer~~ 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~~ certificates, or make a book-entry transfer through the Depositary to such Holder or such Holder’s nominee or nominees, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the ~~Issuer~~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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 of Common Stock to be issued in a name other than ~~the~~ such Holder’s name, in which case ~~the~~ such Holder ~~shall~~ must pay that tax. The ~~Conversion Agent~~ stock transfer agent or the Company, as the case may be, 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 ~~Custodian~~ custodian for the Depositary or its nominee (if other than the Trustee) 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 ~~Issuer~~ 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 payment and delivery, ~~and~~ as the ~~Issuer shall not adjust~~ case may be, of the ~~Conversion Rate for any accrued and unpaid interest on~~ Settlement Amount with respect to any converted ~~Notes. The Issuer’s settlement of the full Conversion Obligation~~ 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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the holder of record of such shares as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (g) above. (ji) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to ~~have elected~~elect) Combination 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 (RPM International Inc/De/)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2031, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but on or prior to the second Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2031, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) IfSubject to clauses (i) and (ii) above, if, in respect of any Conversion Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~September 1, ~~2025,~~ 2031 no later than ~~November 15~~September 1, ~~2025~~2031). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. The Company may, prior to September 1, 2031, at its option, irrevocably fix the Settlement Method or the Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or elect Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice, for all conversions for which the relevant Conversion Date occurs subsequent to such notice, by notice of such election to all Holders. For the avoidance of doubt, such change or election (as the case may be), if made, will be effective without the need to amend this Indenture or the Notes. 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a ~~Fundamental Change~~ Repurchase Event Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such ~~Fundamental Change~~ Repurchase Event Repurchase Notice in accordance with Section ~~15.03~~14.02. A Holder’s exercise of its conversion rights shall be irrevocable. 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~~13.03(b), Section 13.04(f) ~~and~~ or Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted (regardless of whether the converting Holder was the Holder of record on the corresponding Regular Record 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Repurchase Event Repurchase Date for a Fundamental Change ~~Repurchase Date~~ that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) above, and any Repurchase Event Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects (or is deemed to elect) 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Gannett Co., 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 ~~Issuer~~ 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 (“Cash Settlement”), shares~~ an amount equal to the sum of ~~Common Stock~~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 (j‎(k) 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 14.0214.03. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 1, 2028 shall be settled using the same ~~Settlement Method. (ii)~~ forms and amounts of consideration. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of 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 ~~November 15~~September 1, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders, the Trustee and the Conversion Agent of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November 15~~September 1, ~~2025~~2028, no later than ~~November 15~~September 1, ~~2025~~2028) and the Company shall indicate in such Settlement Notice the percentage of 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 ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of 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 (and cash in lieu of fractional shares~~ as ~~provided~~ set forth herein);. (Bii) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the The Daily Settlement Amounts ~~for each of~~ (if applicable), 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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 (Uber 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 February 15, 2024 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption or (y) on or after February 15, 2024), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer shall deliver such Settlement Notice in writing to the Holders~~ Company, with a copy to the Trustee and the Conversion Agent (if other than the Trustee) ), shall deliver such Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November~~ February 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding February 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth ~~above~~herein, such Holder shall (i) in the case of a Global Note, comply with the 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 or electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ 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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any ~~Redemption~~ Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (PROS Holdings, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~Company’s issuance of a Notice of 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 June 15, 2022, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the ~~Notes~~ Notes, but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2022, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and~~ 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (y) on or after ~~November~~ June 15, ~~2025~~2022, no later than ~~November~~ June 15, ~~2025~~2022). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares~~ share of Common Stock issuable on conversion as ~~provided herein~~set forth in ‎Section 14.02(j)); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 50 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 50 consecutive Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion as set forth in ‎Section 14.02(j)). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 ~~any taxes payable as described in Section 14.02(d) or Section 14.02(e)~~ (~~and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii~~i) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 Physical 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Maxwell Technologies Inc)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2024 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions ~~for which~~ described in the relevant Conversion Date occurs after the Issuer’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 November 15, 2025immediately preceding clause (i), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in clause (i) above), as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 for which the relevant Conversion Date occurs (xi) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period, in the related ~~Redemption Date, in such~~ Redemption Notice or (yii) on or after ~~November~~ December 15, ~~2025~~2024, no later than ~~November~~ the close of business on Scheduled Trading Day immediately preceding March 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion or during such period and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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 the foregoing, any conversion of Sponsor Notes shall be subject to Section 13.02(a)(v). (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) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) Subject to clause (D) below, if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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: Investment Agreement (Twitter, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period and all conversions for which the relevant Conversion Date occurs on or after ~~November~~ September 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2029 shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ September 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 (x) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such~~ the related Redemption Notice or (y) any conversions on or after ~~November~~ September 15, ~~2025~~2029, no later than ~~November~~ the close of business on September 15, ~~2025~~2029). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 applicable Conversion ~~Date (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to September 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). However, the Company may nonetheless choose to execute such an amendment at its option. (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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, “pdf” or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that, with respect to any Conversion Date that ~~for any Notes converted~~ is on or after ~~the close of business on~~ the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver~~ pay or deliver, as applicable, the consideration due ~~in respect of the Conversion Obligation~~ upon such conversion on the Maturity ~~Date~~Date (or, if the Maturity Date is not a Business Day, the next Business Day)), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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,~~ below and the ~~Issuer~~ Company shall not adjust the Conversion Rate for ~~any~~ accrued and unpaid ~~interest~~ interest, if any, on ~~any converted~~ the Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, shall receive the full interest payment due on the Maturity Date or ~~such Redemption~~ the applicable Interest Payment Date, as ~~applicable~~the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Indie Semiconductor, 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~paying and delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, either solely cash (“Cash Settlement”), 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 (“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 of Called Notes for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~December 15, 2029, shall be settled using the same Settlement ~~Method~~Method (including the same Specified Dollar Amount, if applicable). (ii) Except for any conversions of Called Notes referred to in ‎Section 14.02(a)(i) for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same Settlement Method (including the same Specified Dollar Amount, if applicable) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the fourth immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice in writing to ~~the~~ converting Holders (with a written 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 (x) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of~~ during a ~~Redemption Notice with respect to the Notes and prior to the~~ related Redemption ~~Date~~Period, in ~~such~~ the relevant Redemption ~~Notice~~ Notice, or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ December 15, ~~2025~~2029, no later than ~~November~~ December 15, ~~2025~~2029) (in each case, the “Settlement Method Election Deadline”). If the ~~Issuer~~ Company does not elect a Settlement Method with respect to a conversion prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement ~~or Physical Settlement with respect to~~ for such conversion and the ~~Issuer~~ 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, for such 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 ~~Issuer~~ Company delivers a Settlement Notice to Holders electing Combination Settlement in respect of its Conversion Obligation, the related Specified Dollar Amount shall be at least equal to $1,000 per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice to Holders 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. If the Company calls any Notes for Redemption, and the related Redemption Date is on or after December 15, 2029, then the Settlement Method that the Company elects to apply for conversions of Called Notes with a Conversion Date occurring during the related Redemption Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December 15, 2029. By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to December 15, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of the Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of the Notes at or above any specified amount set forth in such election notice) for all Conversion Dates occurring subsequent to delivery of such notice. If the Company elects to irrevocably fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of the Notes at or above a specified amount, the Company shall, after the date of such election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion or conversions as described above, or, if the Company does not timely inform the Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, such Specified Dollar Amount shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of the Notes. In no event may the Company elect Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this ‎Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to ‎Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at the Company’s option. If the Company irrevocably fixes the Settlement Method pursuant to the immediately preceding paragraph, then the Company shall either post the fixed Settlement Method 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. (iv) The ~~cash~~cash or, ~~shares of Common Stock or~~ if applicable, 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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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 (Kosmos Energy Ltd.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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~~Shares, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 14.02~~ (“Physical Settlement”) ), or a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, ~~together with cash~~together, if applicable, with cash in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~ Share in accordance with ~~subsection (j~~Section 13.02(j) ~~of this Section 14.02~~ (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02, subject to the requirements of Section 13.07. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during a Redemption Period shall be settled using the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~December 1, 2023 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~December 1, ~~2025~~2023, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversion for which the relevant Conversion Date occurs during a Redemption Period on or after December 1, 2023), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 of any Notes for which the relevant Conversion Date occurs (xA) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in ~~such~~ the applicable Redemption Notice or (yB) on or after ~~November 15~~December 1, ~~2025~~2023, no later than ~~November 15~~the close of business on the Business Day immediately preceding December 1, ~~2025)~~2023. If the ~~Issuer~~ Company does not elect a Settlement Method with respect to any conversion prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of ~~its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000~~such conversion. Such Settlement ~~Notice~~ Notice, if provided, shall specify the relevant Settlement Method ~~and~~ and, in the case ~~of an election~~ of Combination Settlement, the ~~relevant Settlement Notice shall indicate the~~ applicable Specified Dollar ~~Amount per $1,000 principal amount of Notes~~Amount. If the ~~Issuer~~ 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. For the avoidance of doubt, the Company’s failure to so select a Settlement Method or Specified Dollar Amount when so permitted shall not constitute a Default or Event of Default under this Indenture or the Notes. By notice to the Holders, the Company may change the Default Settlement Method to any permitted Settlement Method, except it may not change the Default Settlement Method during any Redemption Period (in respect of Notes converted with a Conversion Date occurring during such Redemption Period) or on or after December 1, 2023 (in respect of Notes converted with a Conversion Date that occurs on or after December 1, 2023). (iv) The cash, ~~shares of~~ Common ~~Stock~~ Shares or combination of cash and ~~shares of~~ Common ~~Stock~~ Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as ~~follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer shall deliver to the converting Holder~~ follows in respect of each $1,000 principal amount of Notes being ~~converted~~ converted: (A) if Physical Settlement applies to such conversion, a number of ~~shares of~~ Common ~~Stock~~ Shares equal to the Conversion Rate in effect on the Conversion Date ~~(and cash in lieu of fractional shares as provided herein)~~for such conversion; (B) if ~~the Issuer elects~~ Cash Settlement applies to ~~satisfy its Conversion Obligation in respect of~~ such ~~conversion by Cash Settlement~~conversion, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period; and (C) if ~~the Issuer elects (or is deemed~~ Combination Settlement applies to ~~have elected) to satisfy its Conversion Obligation in respect of~~ such ~~conversion by Combination Settlement~~conversion, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ~~share of~~ Common ~~Stock~~Share, if any, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the ~~Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock~~same. 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~~13.02(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 ~~procedures of the Depositary in effect at that time~~ Applicable Procedures 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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~~13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 Issuer elects~~ Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)applies, or on the second Business Day immediately following the last Trading Day of the Observation Period, ~~in the case of~~ if any other Settlement ~~Method~~Method applies. If any ~~shares of~~ Common ~~Stock~~ Shares are due to a converting ~~Holders~~Holder, the ~~Issuer~~ Company shall issue and deliver (or otherwise cause to be ~~issued, and deliver~~ delivered) 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 book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion ~~Obligation.~~Obligation.‌ (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~ 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~~13.04, 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 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the ~~Trustee.~~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~~below in this Section 13.02(h), and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of~~ Common ~~Stock~~Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption Date~~ Date, shall receive the full interest payment due on ~~the~~ Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any ~~shares of~~ Common ~~Stock delivered~~ Shares shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record of such shares as of the close of business on the relevant Conversion Date (~~in the case of~~ if Physical ~~Settlement~~Settlement applies to such conversion) or as of the close of business on the last Trading Day of the relevant Observation Period (~~in the case of~~ if Combination ~~Settlement~~Settlement applies to such conversion), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date.~~conversion.‌ (j) The ~~Issuer~~ 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 (~~Date, in the case of Physical Settlement) , or based on the Daily VWAP for the last Trading Day of the relevant Observation ~~Period (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be ~~issued~~ issuable 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

Appears in 1 contract

Samples: Indenture (Integra Lifesciences Holdings Corp)

Appears in 1 contract

Samples: Indenture (Western Digital Corp)

Appears in 1 contract

Samples: Indenture (Benefitfocus,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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, (x) cash up to the aggregate principal amount of the Notes being converted and (~~“Cash Settlement”),~~ y) cash or 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 (“Physical Settlement”)~~ or a combination of cash and shares of Common Stock, ~~together with cash~~at the Company’s election, in respect of the remainder, if ~~applicable~~any, of its Conversion Obligation in ~~lieu~~ excess of ~~delivering any fractional share~~ the aggregate principal amount of ~~Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election~~the Notes being converted, as set forth in this Section ~~14.02~~14.02(a)(iii) and 14.02(j). (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2026, and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2026, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after March 15, 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 March 15, 2026. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after March 15, 2026), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall provide a notice (the “Settlement Notice”) to Holders of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer~~ case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing to (or if the ~~Holders with a copy to~~ Notes are then in global form through the applicable procedures of the Depositary), 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 for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in ~~such~~ the applicable Notice of Redemption ~~Notice~~ or (y) on or after ~~November~~ March 15, ~~2025~~2026, no later than ~~November~~ the close of business on the Business Day immediately preceding March 15, ~~2025~~2026) (the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of 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 ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Date, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the Notes being converted and ~~the Specified Dollar Amount per $1,000 principal amount~~ delivering shares of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer delivers a Settlement Notice electing Combination Settlement Common Stock in respect of ~~its~~ the remainder, if any, of the Company’s Conversion Obligation ~~but does not indicate a Specified Dollar Amount per $1,000~~ in excess of the aggregate principal ~~amount~~ portion of the Notes ~~in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~being converted. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values, as the case may be,~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer ~~documents~~documents 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay or and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the ~~relevant~~ last Trading Day of the Observation Period unless such Conversion ~~Date, if~~ Date occurs following the ~~Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular~~ regular Record Date immediately preceding the Maturity Date, in which case the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ make such payment (and delivery, if applicable) on the Maturity Date~~), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~in this Section 13.02(h), and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 ~~converted~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption~~ Date shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (a Cash Percentage less than 100% or ~~is deemed~~ if the Company does not deliver a Settlement Notice prior to ~~have elected) Combination Settlement~~the Settlement Method Election 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 Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (WisdomTree Investments, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring (x) on or after November 151, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2022 or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 151, ~~2025~~2022, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions occurring (x) during a Redemption Period or (y) on or after November 1, 2022, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 151, ~~2025~~2022, no later than the close of business on Business Day immediately preceding November 151, ~~2025~~2022). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ 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 to be converted shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of ~~Notes~~Notes to be converted. If the ~~Issuer~~ 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 to be converted 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 as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 60 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 60 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)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 ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate for any accrued and unpaid ~~interest on any converted Notes~~interest. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 until 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~~converted (regardless of whether or not the converting Holder was the record holder 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date~~ corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on ~~which~~ or prior to the second Scheduled Trading Day immediately following the corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Five9, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(a) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 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~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025, and all conversions for which~~ the ~~relevant Conversion~~ 35th Scheduled Trading Date ~~occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and~~ immediately prior to the ~~related Redemption~~ Maturity Date (the “Irrevocable Settlement Election Date, ”) shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs on or after the ~~Issuer’s issuance of a Redemption Notice~~ Irrevocable Settlement Election Date, and except as set forth below 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 November 15, 2025~~Redemptions, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, ~~but~~ but, the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy to the Trustee and~~ the Conversion Agent ~~(if other than the Trustee)~~ and converting Holders no later than the close of business on the first 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November 15, 2025~~the Irrevocable Settlement Election Date, no later than ~~November 15, 2025~~Irrevocable Settlement Election Date). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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 the foregoing, (i) if the Company calls any Notes for Redemption, then the Company will specify in the related Redemption Notice (and, in the case of a Redemption of less than all Notes then outstanding, in a notice sent simultaneously to all Holders of Notes not called for Redemption and to the Trustee) the Settlement Method that will apply to all conversions with a Conversion Date that occurs on or after the date the Company sends such Redemption Notice and on or before the second Scheduled Trading Day immediately preceding the related Redemption Date; and (ii) unless the Company has elected another Settlement Method to apply for Conversion Dates that occur on or after a date the Company delivers a Distribution Conversion Trigger Notification until the related Distribution Conversion Period End Date in accordance with the provisions described above, the Company will be permitted to elect Physical Settlement in any such Distribution Conversion Trigger Notification as in Section 13.02(b) and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of such Distribution Conversion Trigger Notification until the related Distribution Conversion Period End Date. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Class A Common Stock equal to the Conversion Rate in effect on the Conversion Date (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Class A Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 30 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 30 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Class A Common Stock issuable upon conversion). (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Class A Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of 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~~13.02(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 ~~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~~13.02(h) ~~and any taxes payable as described in~~ and, if required, pay all transfer or similar taxes, if any, pursuant to Section ~~14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights~~13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~13.02(h) and ~~any taxes payable as described in~~ (5) if required, pay all transfer or similar taxes, if any, pursuant to Section ~~14.02(d) or Section 14.02(e~~13.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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~~13.03(a) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation through Physical Settlement (~~provided that for~~ provided, that, with respect to any ~~Notes converted~~ conversion with a Conversion Date occurring after the ~~close of business on the Regular~~ regular Record Date immediately preceding the Maturity ~~Date~~Date to which Physical Settlement applies, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last VWAP Trading Day of the Observation Period, in if the ~~case of~~ Company elects to satisfy its Conversion Obligation through any other Settlement Method. If any shares of Class A Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 Class A Common Stock to which such Holder shall be ~~entitled~~ entitled, in book-entry format through the Depositary, in satisfaction of the ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery 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~~13.04, 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 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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.or

Appears in 1 contract

Samples: Indenture (Twilio 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 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 (j‎(j) 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 ‎Section 14.02. (i) All conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2029, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after August 1, 2029), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice (the “Settlement Notice”)~~ portion of its Conversion Obligation in excess of the ~~relevant Settlement Method~~ principal portion of the Notes being converted in cash in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver such Settlement Notice in writing to the Holders with a copy to~~ 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 of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such Redemption~~ the related Notice of Redemption, or (yB) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, ~~2025~~2029, no later than ~~November 15~~August 1, ~~2025~~2029) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect~~ timely notify Holders of such an election of a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest ~~will~~ shall be deemed to be paid first out of the cash paid upon such conversion. 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 ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (4) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record of such shares of Common Stock 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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 (Omnicell, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 the 45th Scheduled Trading Day immediately preceding the Maturity Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ 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 the 45th Scheduled Trading Day immediately preceding the Maturity Date, by written notice to Holders, the Trustee and the Conversion Agent, irrevocably elect one settlement method or irrevocably eliminate one or more Settlement Methods or irrevocably elect a Specified Dollar Amount to be applicable to Combination Settlements. (iii) If, in respect of any Conversion ~~Date~~Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall ~~deliver~~ send such Settlement Notice ~~in writing~~ to the ~~Holders with a copy to the Trustee and~~ 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and ~~prior to~~ before the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date, no later than ~~November 15, 2025~~the 45th Scheduled Trading Day immediately preceding the Maturity Date). If With respect to any conversion, if the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, then the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and ~~the Issuer~~ shall be deemed to have elected Combination Settlement in with respect ~~of its Conversion Obligation,~~ to such conversion and the Specified Dollar Amount per $1,000 principal amount of Notes ~~shall~~ will be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the ~~Issuer~~ 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 herein, if the Company calls any Notes for redemption pursuant to Article 15 and the related Redemption Date is on or after the 45th 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 45th Scheduled Trading Day immediately preceding the Maturity Date. (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 ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Physical Settlement, the ~~Issuer~~ 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 (~~and~~ provided that the Company shall deliver cash in lieu of fractional shares as ~~provided herein~~described in Section 13.02(j)); (B) if the ~~Issuer~~ Company elects ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Cash Settlement, the ~~Issuer~~ 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 VWAP Trading Days during the related ~~Observation~~ Conversion Reference Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) ~~to satisfy its Conversion Obligation in respect of such conversion by~~ Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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~~ Conversion Reference Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the ~~Observation~~ Conversion Reference Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h~~13.02(h) and ~~any taxes payable as described~~ (ii) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and comply with Section ~~14.02(d~~13.02(b)(3), (4) ~~or Section 14.02(e~~and (5). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. 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~~‎Section 13.03(b) and Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last VWAP Trading Day of the ~~Observation~~ Conversion Reference Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record ~~Date~~Date but prior to the opening of business on the Interest Payment Date to which that Regular Record Date relates, Holders of such Notes as of the close of business on ~~such~~ the Regular Record Date ~~shall receive~~ will 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 ~~converted~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record DateNotes. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ stockholder of record of with respect to such shares of Common Stock as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 VWAP Trading Day of the relevant ~~Observation~~ Conversion Reference Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 January 1, 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~January 1, ~~2025~~2026, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November 15~~January 1, ~~2025~~2026, no later than ~~November 15~~January 1, ~~2025~~2026). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 25 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 25 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to January 1, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly issue a report on Form 8-K or press release announcing that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option. (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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (MP Materials Corp. / DE)

Appears in 1 contract

Samples: Indenture (Enphase Energy, 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 60 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 (j) 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 of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~2028, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a ~~Redemption Notice with respect to the Notes but prior to the~~ related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2028, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period or any conversions for which the relevant Conversion Date occurs on or after June 15, 2028), the ~~Issuer~~ 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 “~~Settlement~~ Cash Percentage Notice”) of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer shall deliver such Settlement Notice in writing~~ case may be) to ~~the Holders with a copy 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 (x) any conversions of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such~~ the related Notice of Redemption ~~Notice~~ or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2028, no later than ~~November~~ June 15, ~~2025~~2028) (in each case, the “Cash Percentage Election Deadline”), and the Company shall indicate in such Cash Percentage Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that will be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not ~~elect~~ timely notify Holders of such an election of a ~~Settlement Method~~ Cash Percentage at or prior to the ~~deadline set forth in the immediately preceding sentence~~applicable Cash Percentage Election Deadline, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Net Settlement Amounts ~~for each of the 40 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values, as the case may be,~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. 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 ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record of such shares of Common Stock 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) ~~Combination Settlement~~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 (PagerDuty, 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 of Called Notes for which the relevant Conversion Date occurs ~~on or after November 15, 2025~~during the related Redemption Period, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~September 1, 2029, shall be settled using the same Settlement Method. (ii) Except for any conversions of Called Notes for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of a Redemption Notice with respect to the Notes but prior to~~ during the related Redemption ~~Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2029, and except to the extent the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section or has previously made an irrevocable election with respect to all subsequent conversions of Notes pursuant to the second paragraph of Section 14.02(a)(iii), the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after September 1, 2029 or for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii) in a notice as described in such Section), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 (A) of Called Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to~~ during the related Redemption ~~Date~~Period, in ~~such Redemption~~ the related Notice or of Redemption, (yB) of Notes for which the relevant Conversion Date occurs on or after ~~November 15~~September 1, ~~2025~~2029, no later than ~~November 15~~September 1, ~~2025~~2029 or (C) for which the Company has irrevocably elected Physical Settlement pursuant to Section 14.01(b)(ii), in a notice as described in such Section, or for which the Company has previously made an irrevocable election with respect to all subsequent conversions of the Notes pursuant to the second paragraph of this Section 14.02(a)(iii)). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ a Settlement ~~or Physical Settlement~~ Method with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement in Method with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to ~~$1,000~~such 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 ~~Issuer~~ Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount shall not constitute a Default or Event of Default under this Indenture. By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior to September 1, 2029. By notice to all Holders, the Company may, prior to September 1, 2029, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election notice. 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 an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the Settlement Method pursuant to this paragraph, then, concurrently with providing notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement Method, 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 the Commission. (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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or (if applicable), the Daily Conversion ~~Values, as the case may be,~~ Values (if applicable) 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~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 ~~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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after~~ Conversion Date following the ~~close of business on the Regular~~ Special Interest Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a ~~Regular~~ Special Interest Record Date for the payment of Special Interest, 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 ~~shall~~ 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 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (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 as of the time immediately prior to the close of business on the Conversion Date. (j) The Issuer 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Issuer has elected (or is deemed to have elected) Combination 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.P

Appears in 1 contract

Samples: Indenture (Datadog, Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~9.02, Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), upon conversion of any Note, the ~~Issuer~~ 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 ~~delivering~~ any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 9.02 (“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~~ 9.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~9.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November 15~~April 1, ~~2025~~2017, and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer~~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 ~~for which the relevant Conversion Date occurs~~ that occur after the ~~Issuer~~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~~ that occur on or after ~~November 15~~April 1, ~~2025~~2017, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice to converting Holders, in ~~writing to~~ accordance with Section 10.02 of the ~~Holders with a copy to the Trustee and the Conversion Agent (if other than the Trustee)~~ Base Indenture, 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November 15~~April 1, ~~2025~~2017, no later than ~~November 15~~April 1, ~~2025~~2017). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical 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~~. 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~~Amount. If the ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the ~~related~~ relevant Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ any fractional ~~share of Common Stock~~share, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of ~~delivering~~ fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~9.02(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 procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Note 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights9.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice or facsimile thereof to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~9.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 9 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and ~~has~~ not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~10.02. 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~~ Subject to Section ~~14.03(b~~9.03(b) and Section ~~14.07(a~~9.07(a), the ~~Issuer~~ Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation (including any Make-Whole Premium in connection with any conversion pursuant to Section 9.01(b)(v)) on the ~~second~~ third Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ 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 ~~Issuer~~ Company shall issue or cause to be issued, and deliver to the ~~Conversion Agent~~ stock transfer 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 ~~Issuer~~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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~any~~ 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~~ must pay that tax. The ~~Conversion Agent~~ stock transfer agent or the Company, as the case may be, 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~~9.04, 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 149. (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 ~~Issuer~~ 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,~~ below and ~~the Issuer shall not adjust the Conversion Rate for~~ other than any ~~accrued and unpaid interest on any converted Notes~~Make-Whole Premium described in Article 11. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be~~ treated as the holder of record of such shares as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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, and, if applicable, the Make-Whole Premium pursuant to Section 9.02(k), 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with clause (h) above. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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) With respect to any Notes that are converted following issuance of a Redemption Notice and prior to the close of business on the Scheduled Trading Day immediately prior to the related Redemption Date, in addition to the payment or delivery of the consideration due upon conversion as described in this Section 9.02, the Company shall pay or deliver, as the case may be, the Make-Whole Premium in cash, shares of Common Stock or a combination of cash and shares of Common Stock, the form of consideration as specified in the Redemption Notice and described in Section 11.03.

Appears in 1 contract

Samples: First Supplemental Indenture (XPO Logistics, 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 ~~Issuer~~ 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 ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 30 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 (j‎(j) 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 ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2027 shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’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 ~~November~~ March 15, ~~2025~~2027, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs on or after March 15, 2027), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders through (and upon a written request to) the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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 of Notes for which the relevant Conversion Date occurs ~~(x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y)~~ on or after ~~November~~ March 15, ~~2025~~2027, no later than ~~November~~ March 15, ~~2025~~2027) and the Company shall indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being converted that shall be paid in cash (the “Cash Percentage”). If the ~~Issuer~~ Company does not elect a ~~Settlement Method~~ Cash Percentage prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement~~ Percentage with respect to any conversion on such ~~conversion~~ Conversion Date or during such period, and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement in~~ a Cash Percentage of 0% with respect ~~of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal~~ to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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~~conversion. (iv) The ~~cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “~~Daily Settlement ~~Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement~~Amounts, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 Net Settlement Amounts (if applicable) and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ 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 ~~Issuer~~ 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 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and (ii) in the case of a Physical Note (1) complete, manually or electronically 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 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 14.02(e) and (45) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 ~~Holder~~ Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date for the payment of interest but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted 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 Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or (43) to the extent of any ~~Defaulted Amounts~~overdue 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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a shareholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, ~~if the Issuer has elected (or is deemed to have elected) Combination Settlement,~~ 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 (Pinnacle West Capital Corp)

Appears in 1 contract

Samples: Indenture (Incyte Corp)

Conversion Procedure; Settlement Upon Conversion. (a) ~~Subject to this~~ Except as provided in Section ~~14.02, Section 14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, on the ~~Issuer~~ 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, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 40 Trading Days during the 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 (j) 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 14.0213.02. (i) All conversions ~~for which the relevant Conversion Date occurs~~ occurring on or after ~~November 15~~August 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date,~~ 2018 shall be settled using the same ~~Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the Issuer’s issuance~~ forms and proportionate amounts of ~~a Redemption Notice with respect~~ consideration. Prior to ~~the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after November 15~~August 1, ~~2025~~2018, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and proportionate amounts of consideration for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and proportionate amounts with respect to conversions ~~with~~ that occur on different Conversion Dates~~. (iii) If,~~ . If the Company elects to settle all or a portion of its Conversion Obligation in ~~respect~~ excess of ~~any Conversion Date~~the principal portion of the Notes being converted in cash, the ~~Issuer elects to deliver a notice~~ Company shall inform converting Holders through the Trustee of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related 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 prior to the related Redemption Date, in such Redemption Notice or (y)~~ occurring on or after ~~November 15~~August 1, ~~2025~~2018, no later than ~~November 15~~the close of business on the Scheduled Trading Day immediately preceding August 1, ~~2025~~2018) and the Company shall indicate in such Settlement Notice the percentage of 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 ~~Issuer~~ Company does not ~~elect~~ so deliver a Settlement ~~Method~~ Notice prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation, and~~ the ~~Specified Dollar Amount per $1,000~~ principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 portion of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of converted 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Issuer promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering ~~any fractional share~~ shares of Common Stock, ~~the Issuer shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts~~ or the Daily Conversion Values, as the case may be, and the amount of cash payable 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent or by facsimile 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 Issuer 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Issuer 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Issuer 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 Issuer 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 Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Issuer 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 Issuer’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The Issuer’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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, ~~accrued and unpaid interest will be deemed to be paid first out~~ in respect of the ~~cash paid upon such conversion. Notwithstanding the foregoing~~remainder, if ~~Notes are converted after the close~~ any, of ~~business on a Regular Record Date, Holders of such Notes as~~ its Conversion Obligation in excess of the ~~close~~ aggregate principal portion of business on such Regular Record Date 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~~ being converted as set forth herein. (1ii) ~~for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Issuer has specified~~ If a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Holder’s Notes have been converted following such Regular Record Date. (i) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall be deemed to be the holder of record of such 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 Period (in the case of Combination Settlement)called for redemption, as ~~the case may be. Upon a conversion of Notes~~described under Article 15, and such ~~Person shall no longer be a~~ Holder of submits such Notes ~~surrendered~~ for conversion ~~as of the~~ at any time ~~immediately~~ prior to the close of business on the ~~Conversion Date. (j) The Issuer shall not issue any fractional share of Common Stock upon conversion of~~ Business Day immediately preceding 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~~ Redemption Date (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 conversionor, if the ~~Issuer has elected~~ Company fails to pay the Redemption Price on the Redemption Date, such later date on which the Company pays the Redemption Price), then the Company will, in addition to paying cash and delivering shares of Common Stock, if any, pay a Make-Whole Premium in cash to such holder equal to the sum of the present values of the remaining scheduled payments of interest that would have been made on the Notes to be converted had such Notes remained outstanding from the applicable Conversion Date to the Maturity Date (~~or is deemed to have elected) Combination Settlement~~excluding interest accrued to, but excluding, 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.applicable Conversion

Appears in 1 contract

Samples: Indenture (Pacira Pharmaceuticals, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November 15~~February 1, ~~2025~~2018, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~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 for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~February 1, ~~2025~~2018, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) subject to clause (y), after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November 15~~February 1, ~~2025~~2018, no later than ~~November 15~~February 1, ~~2025~~2018). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ Company shall deliver (or cause its stock transfer agent to 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 20 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Hxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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)~~ 14.03 and Section ~~14.07(a)~~14.07 below, the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the ~~second~~ third Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ Company shall issue or cause to be ~~issued~~issued by its stock transfer agent, 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 ~~Issuer~~Company’s Conversion Obligation. Prior to the issuance of Common Stock, 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. For the avoidance of doubt, neither the Conversion Agent nor the Trustee shall have any responsibility for the issuance by the Company of shares of Common Stock. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ Company 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 ~~Issuer~~ 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 Company (or if the stock certificates are delivered by the Company to the Conversion Agent for further delivery to the converting Holder, 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~~Note. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business Day immediately following the date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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: First Supplemental Indenture (American Realty Capital Properties, 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, (x) cash up to the aggregate principal amount of the Notes being converted and (~~“Cash Settlement”),~~ y) cash or 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 (“Physical Settlement”)~~ or a combination of cash and shares of Common Stock, ~~together with cash~~at the Company’s election, in respect of the remainder, if ~~applicable~~any, of its Conversion Obligation in ~~lieu~~ excess of ~~delivering any fractional share~~ the aggregate principal amount of ~~Common Stock in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election~~the Notes being converted, as set forth in this Section ~~14.02~~14.02(a)(iii) and 14.02(j). (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2023, and all conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, shall be settled using the same ~~Settlement Method~~forms and amounts of consideration. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ March 15, ~~2025~~2023, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ forms and amounts of consideration for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ forms and amounts of consideration with respect to conversions with different Conversion Dates. In addition, if the Company calls any Notes for redemption pursuant to Article 16, and the related Redemption Date is on or after March 15, 2023, 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 March 15, 2023. (iii) If, in respect of any Conversion ~~Date~~Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period, or for which the relevant Conversion Date occurs on or after March 15, 2023), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash, the Company shall provide a notice (the “Settlement Notice”) to Holders of ~~the relevant Settlement Method~~ such election in respect of such Conversion ~~Date~~Date (or such period, as the ~~Issuer~~ case may be), and the Company shall deliver such Settlement Notice to converting Holders in writing to (or if the ~~Holders with a copy to~~ Notes are then in global form through the applicable procedures of the Depositary), 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 for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in ~~such~~ the applicable Notice of Redemption ~~Notice~~ or (y) on or after ~~November~~ March 15, ~~2025~~2023, no later than ~~November~~ the close of business on the Business Day immediately preceding March 15, ~~2025~~2023) (the “Settlement Method Election Date”). Such Settlement Notice shall indicate the percentage of 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 ~~Issuer~~ Company does not ~~elect a Settlement Method~~ make such an election prior to the ~~deadline set forth in the immediately preceding sentence~~Settlement Method Election Date, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion~~ Percentage and the ~~Issuer~~ Company shall ~~be deemed to have elected Combination Settlement~~ settle its Conversion Obligation paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the Notes being converted and ~~the Specified Dollar Amount per $1,000 principal amount~~ delivering shares of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer delivers a Settlement Notice electing Combination Settlement Common Stock in respect of ~~its~~ the remainder, if any, of the Company’s Conversion Obligation ~~but does not indicate a Specified Dollar Amount per $1,000~~ in excess of the aggregate principal ~~amount~~ portion of the Notes ~~in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000~~being converted. (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 Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Issuer 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 (and cash in lieu of fractional shares as provided herein); (B) if the Issuer elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Issuer 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 Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer 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 50 consecutive Trading Days during the related Observation Period. (v) The Daily Settlement Amounts, the Daily Net Settlement Amounts ~~(if applicable)~~ and the Daily Conversion Values ~~(if applicable)~~ shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values, as the case may be,~~ 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ Company or in blank (and accompanied by appropriate endorsement and transfer ~~documents~~documents 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay or and, if applicable, deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the ~~relevant~~ last Trading Day of the Observation Period unless such Conversion ~~Date, if~~ Date occurs following the ~~Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular~~ regular Record Date immediately preceding the Maturity Date, in which case the ~~Issuer~~ Company shall ~~deliver the consideration due in respect of the Conversion Obligation~~ make such payment (and delivery, if applicable) on the Maturity Date~~), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method~~. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~in this Section 13.02(h), and the ~~Issuer shall~~ Company will not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 ~~converted~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Scheduled Trading Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or any Redemption~~ Date shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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 ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (a Cash Percentage less than 100% or ~~is deemed~~ if the Company does not deliver a Settlement Notice prior to ~~have elected) Combination Settlement~~the Settlement Method Election 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 Observation Period and any fractional shares remaining after such computation shall be paid in cash.

Appears in 1 contract

Samples: Indenture (WisdomTree Investments, 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, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j‎(j) of this ~~Section~~ ‎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(j) of this ~~Section~~ ‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ~~Section~~ ‎Section 14.02. (i) All conversions for which the relevant Conversion Date occurs ~~on or after November 15, 2025, and all conversions for which the relevant Conversion Date occurs~~ after the ~~Issuer~~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 June 15, 2026 shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ June 15, ~~2025~~2026, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption ~~Notice~~ Notice, or (y) on or after ~~November~~ June 15, ~~2025~~2026, no later than ~~November~~ June 15, ~~2025~~2026). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (vi) By notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to June 15, 2026, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted to elect for all Conversion Dates occurring subsequent to delivery of such notice. Concurrently with providing notice to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) of an election to irrevocably fix the Settlement Method, the Company shall promptly file with or furnish to the Commission a Current Report on Form 8-K disclosing, issue a press release announcing or post on the Company’s website an announcement, that the Company has elected to irrevocably fix the Settlement Method (and describing such Settlement Method). Notwithstanding the foregoing, no such irrevocable election shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section 14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment at its option. (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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~ ‎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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 ~~or any Redemption Date~~ shall receive the full interest payment due on the Maturity Date ~~or such Redemption Date, as applicable,~~ in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Porch 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, the ~~Issuer~~ 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~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and ~~shares of Common Stock~~Class A Shares, together with cash, if applicable, in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares 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 Date occurs on or after ~~November 15~~August 1, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or during a single Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after ~~November 15~~August 1, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) ~~If,~~ If the Company elects a Settlement Method in respect of ~~any~~ a Conversion ~~Date~~Date (or in respect of conversions occurring on or after August 1, 2025), the ~~Issuer elects to~~ Company will deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or in respect of conversions occurring on or after August 1, ~~the Issuer shall deliver such Settlement Notice in writing~~ 2025) to ~~the Holders with a copy to the Trustee and the Conversion Agent (if other than~~ converting Holders, through the Trustee) , 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 for which~~ conversion (i) during a Redemption Period as described in Article XVI, in the relevant ~~Conversion Date occurs~~ Notice of Redemption, (~~x) after the date of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y~~ii) on or after ~~November 15~~August 1, 2025, no earlier than 15 Business Days prior to August 1, 2025 and no later than ~~November 15~~the close of business on the Business Day immediately preceding August 1, ~~2025~~2025 or (iii) for which the Company has elected Physical Settlement to apply in a Certain Distributions Notice, in such Certain Distributions Notice). . (iv) If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in ~~the immediately preceding sentence~~clause (iii) above, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or ~~Physical~~ Combination Settlement ~~with respect to~~ for such conversion or during such period and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Physical 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. 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 ~~Issuer~~ 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 the foregoing, the Company will be permitted to irrevocably elect Physical Settlement in any Certain Distributions Notice and any such election would be applicable to conversions with Conversion Dates that occur after delivery to the Holders of the Certain Distributions Notice until the Certain Distributions Conversion Period End Date. (ivv) The cash, ~~shares of Common Stock~~ Class A Shares or combination of cash and ~~shares of Common Stock~~ Class A Shares in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: (A) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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~~ Class A Shares equal to the Conversion ~~Rate in effect on the Conversion Date (and cash in lieu of fractional shares as provided herein)~~Rate; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 20 consecutive Trading Days during the related Observation Period. (vvi) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of ~~Common Stock~~Class A Shares, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional ~~shares of Common Stock~~Class A 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 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 any taxes payable as described in Section 14.02(d)~~ and, if required, pay all transfer or ~~Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures~~ similar taxes, if ~~such Holder wishes to exercise its conversion rights)~~ 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~~ facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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~~ Class A Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the ~~Issuer~~ 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 interest payable on the next Interest Payment ~~Date to which such Holder is not entitled as set forth in Section 14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e)~~Date. The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 XIV on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change ~~Repurchase~~ Purchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method~~. If~~ ; provided that, with respect to any ~~shares of Common Stock are due to converting Holders~~Conversion Date occurring (x) during a Redemption Period, the ~~Issuer shall issue~~ Company will settle any such conversion for which the Company elects Physical Settlement on the Redemption Date or ~~cause to be issued~~(y) on or after August 1, ~~and deliver to~~ 2025, the ~~Conversion Agent or to~~ Company will settle any such ~~Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through~~ conversion for which it elects Physical Settlement on the ~~Depositary for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Issuer’s Conversion Obligation~~Maturity Date. (d) In case any Physical Note shall be surrendered for partial conversion, the ~~Issuer~~ Company shall ~~execute~~ execute, and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so ~~surrendered~~ 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 ~~Issuer~~ Company, the Trustee or ~~Trustee~~the Security Registrar, 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 ~~Issuer~~ Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any ~~shares of Common Stock~~ Class A Shares 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~~ certificate representing the ~~shares of Common Stock~~ Class A 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~~ Holders 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~~ Class A Shares issued upon the conversion of any Note as provided in this Article 14XIV. (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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and ~~shares of Common Stock~~Class A Shares, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date 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 ~~converted~~converted 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 ~~Issuer~~ Company has specified a Fundamental Change 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 Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made; (3) if the Issuer has specified a Fundamental Change Repurchase~~ Interest Payment Date ~~that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made;~~ 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 or any Redemption Date shall receive the full interest payment due on the Maturity Date or such Redemption Date, as applicable, regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any shares of Common Stock delivered~~ the Class A Shares shall be issuable upon conversion ~~is registered~~ shall ~~be deemed to be~~ become the ~~holder~~ Holder of record of such shares as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ Company shall not issue any fractional share of ~~Common Stock~~ Class A Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of ~~Common Stock~~ Class A Shares issuable upon conversion based on the Daily VWAP ~~for~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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~~ Period, and any fractional shares remaining after such computation shall be paid in cash. If a Holder converts more than one Note on a Conversion Date, then the consideration due upon such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the applicable procedures of the Depositary) be computed based on the total principal amount of Notes converted on such Conversion Date by that Holder.

Appears in 1 contract

Samples: First Supplemental Indenture (Shopify Inc.)

Conversion Procedure; Settlement Upon Conversion. (a) Subject to this Section ~~14.02~~13.02, Section ~~14.03(b~~13.03(b) and Section ~~14.07(a~~13.07(a), upon conversion of any Note, the ~~Issuer~~ 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 delivering any fractional share of Common Stock in accordance with subsection (j) of this Section ~~14.02~~ 13.02 (“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~~ 13.02 (“Combination Settlement”), at its election, as set forth in this Section ~~14.02~~13.02; provided, however, that all conversion prior to June 29, 2020 shall be settled through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000. (i) All conversions for which the relevant Conversion Date occurs on or after ~~November~~ January 15, ~~2025~~2024, and all conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Redemption Notice with respect to the Notes but on or prior to the second Scheduled Trading Day prior to the related Redemption ~~Date~~ Date, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ January 15, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) IfSubject to clauses (i) and (ii) above and the proviso to Section 13.02(a), if, in respect of any Conversion Date, the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the ~~Issuer~~ Company, through the Trustee, shall deliver such Settlement Notice ~~in writing~~ to ~~the~~ converting 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 for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption Notice with respect to the Notes and on or prior to the second Scheduled Trading Day prior to the related Redemption Date, in such Redemption Notice or (y) on or after ~~November~~ January 15, ~~2025~~2024, no later than ~~November~~ January 15, ~~2025~~2024). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to such conversion~~ and the ~~Issuer~~ 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. 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 ~~Issuer~~ 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. The Company may, prior to January 15, 2024, at its option, irrevocably elect Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, for all conversions for which the relevant Conversion Date occurs subsequent to such notice, by notice of such election to all Holders. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ Company shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) Subject to Section ~~14.02(e~~13.02(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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights13.02(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 thereof) (a “Notice of Conversion”) at the office of the Conversion Agent ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section ~~14.02(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section ~~15.03~~14.02. A Holder’s exercise of its conversion rights shall be irrevocable. 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~~13.03(b), Section 13.04(f) ~~and~~ or Section ~~14.07(a~~13.07(a), the ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date)Settlement, or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~13.04, 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~ 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ 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 following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) above, and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ Company elects (or is deemed to elect) 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Gannett Co., 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 ~~Date~~ Dates occurs (x) on or after November 151, ~~2025, and all conversions for which~~ 2024 shall be settled using the ~~relevant Conversion Date occurs after the Issuer’s issuance of~~ same Settlement Method or (y) during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date,~~ Period shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period and any conversions for which the relevant Conversion Date occurs on or after November 151, ~~2025~~2024, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions ~~with~~ occurring on the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions ~~with~~ that occur on different Conversion Dates. (iii) If, in respect of any Conversion ~~Date~~Date (or in the case of any conversions occurring (x) during a Redemption Period or (y) on or after November 1, 2024), the ~~Issuer~~ Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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 ~~for which the relevant Conversion Date occurs~~ occurring (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, in such Redemption ~~Notice~~ Notice, or (y) on or after November 151, ~~2025~~2024, no later than the close of business on Scheduled Trading Day immediately preceding November 151, ~~2025~~2024). If the ~~Issuer~~ Company does not timely elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect Cash Settlement or Physical Settlement ~~with respect to~~ for such conversion on the relevant Conversion Date or during the relevant period and the ~~Issuer~~ 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. 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 ~~Issuer~~ Company timely 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. By notice to Holders, the Company may, prior to November 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; provided, however, that no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. 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(i). (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h~~) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (~~and~~ and, if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects Physical Settlement, or, in the case of any other Settlement ~~(provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date~~Method, ~~the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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 Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the date on which the corresponding interest payment is made; (3) if the Issuer Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment~~ Interest Payment Date; (3) if the Company has specified a Redemption Date that is ~~made~~after a Regular Record Date and on or prior to the 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 described in clause (2) of the immediately preceding sentence or any Redemption Date 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 ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted and/or repurchased, as applicable, following such Regular Record Date. (i) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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~~ on the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP ~~for~~ on the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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~~ ‎Section 14.02, ~~Section~~ ‎Section 14.03(b) and ~~Section~~ ‎Section 14.07(a), upon conversion of any Note, the ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver to the converting Holder, in respect of each $1,000 in principal amount of Notes being converted, ~~cash (~~a “~~Cash Settlement”), shares~~ Settlement Amount” equal to the sum of ~~Common Stock~~the Daily Settlement Amounts for each of the 50 Trading Days during the relevant Observation Period, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j‎(j) 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 ‎Section 14.02. (i) All conversions for which the relevant Conversion 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 ~~or after November 15, 2025~~the Scheduled Trading Day immediately preceding the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after ~~the Issuer’s issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date~~April 15, 2029 shall be settled using the same ~~Settlement Method. (ii)~~ Cash Percentage. Except for any conversions for which the relevant Conversion Date occurs after the ~~Issuer~~Company’s issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes but prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ April 15, ~~2025~~2029, the ~~Issuer~~ Company shall use the same ~~Settlement Method~~ Cash Percentage for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same ~~Settlement Method~~ Cash Percentage with respect to conversions with different Conversion Dates~~. (iii)~~ . If, in respect of any Conversion ~~Date~~Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the ~~Issuer~~ Company elects to ~~deliver~~ settle all or a ~~notice~~ portion of its Conversion Obligation in excess of the principal amount of the Notes being converted in cash in respect of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders of such election (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer shall deliver such Settlement Notice in writing to the 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~~ related Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (xi) after the date of issuance of a Notice of Redemption ~~Notice~~ with respect to the Notes and prior to the close of business on the Scheduled Trading Day immediately preceding the related Redemption Date, in such Notice of Redemption ~~Notice~~ or (yii) on or after ~~November~~ April 15, ~~2025~~2029, no later than ~~November~~ April 15, ~~2025~~2029) and the Company shall indicate in such 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 ~~Issuer~~ Company does not ~~elect a Settlement Method prior to the deadline set forth~~ timely make such an election as described in the immediately preceding sentence, the ~~Issuer~~ Company shall no longer have the right to elect a Cash ~~Settlement or Physical Settlement with respect to such conversion and~~ Percentage, the ~~Issuer~~ Company shall be deemed to have elected ~~Combination Settlement~~ a Cash Percentage of 0% and the Company shall settle its Conversion Obligation by paying cash in respect of ~~its Conversion Obligation,~~ the principal portion of the converted Notes and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Issuer 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. (iv) The cash, shares of Common Stock or combination of cash and delivering shares of Common Stock in respect of ~~any conversion~~ the remainder, if any, of ~~Notes (the “Settlement Amount”) shall be computed as follows: (A) if the Issuer elects to satisfy~~ its Conversion Obligation in ~~respect~~ excess of ~~such conversion by Physical Settlement,~~ the ~~Issuer shall deliver to~~ aggregate principal portion of the ~~converting Holder in respect of each $1,000 principal amount of~~ Notes being converted ~~a number~~ as set forth herein (subject to Section 14.02(j)). At the time that the Company informs the Holders of ~~shares of Common Stock equal~~ any election pursuant to the ~~Conversion Rate in effect on~~ second immediately preceding sentence, the Company shall send a copy of the Settlement Notice to the Trustee and the Conversion ~~Date~~ Agent (if other than the Trustee). For the avoidance of doubt, failure to deliver a Settlement Notice to the Trustee or the Conversion Agent (if other than the Trustee) shall not affect the right of the Company to elect a Cash Percentage or the validity or sufficiency of any such election made in accordance with the second and ~~cash in lieu of fractional shares as provided herein);~~third immediately preceding sentences. (Bii) ~~if the Issuer elects to satisfy its Conversion Obligation in respect~~ For any conversion of ~~such conversion by Cash Settlement~~Notes, the ~~Issuer shall pay to~~ Daily Settlement Amounts, the ~~converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of~~ Daily Net Settlement Amounts, the Daily Conversion Values ~~for each of~~ and the 40 consecutive Trading Days during the related Observation Period; and (C) if the Issuer elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Issuer shall pay or deliver, as the case may be, 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the relevant Observation Period. Promptly after such determination of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~Values 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 ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement ~~Amounts or~~ Amounts, the Daily Net Settlement Amounts, the Daily Conversion ~~Values~~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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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) ~~and any taxes payable as described in Section 14.02(d)~~ if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 by a Holder thereof if such ~~Holder~~ Xxxxxx has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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 ~~Issuer~~ Company shall pay ~~or deliver~~and, ~~as the case may be~~if applicable, deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Issuer elects Physical Settlement (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation 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 a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~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 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 ~~Issuer~~ 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of ~~Notes into a combination of cash and shares of Common Stock~~Notes, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date ~~shall~~ 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~~converted 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 ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date ~~shall~~ described in clause (2) above or any Fundamental Change Repurchase Date described in clause (3) above shall, in each case, receive the full interest payment due on the Maturity Date or ~~such Redemption~~ the applicable Interest Payment Date, as ~~applicable~~the case may be, in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be the holder~~ treated as a stockholder of record ~~of such 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~~ related Observation ~~Period (in the case of Combination Settlement), as the case may be~~Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for ~~conversion as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 ~~Period (in the case of Combination Settlement)~~Period. For each Note surrendered for conversion~~, if the Issuer has elected (or is deemed to have elected) Combination Settlement~~, the full number of shares that shall be issued upon conversion ~~thereof~~ thereof, if any, 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 (Repay Holdings 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, the ~~Issuer~~ Company shall ~~pay~~ satisfy its Conversion Obligation by paying or ~~deliver~~delivering, 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 delivering any fractional share of Common Stock in accordance with subsection (j) 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 Date occurs on or after ~~November~~ February 15, ~~2025, and all conversions for which the relevant Conversion Date occurs after the Issuer’s issuance of~~ 2025 or during a Redemption ~~Notice with respect to the Notes and prior to the related Redemption Date~~Period, shall be settled using the same Settlement Method. (ii) Except for any conversions for which the relevant Conversion Date occurs ~~after the Issuer’s issuance of~~ during a Redemption ~~Notice with respect to the Notes but prior to the related Redemption Date~~ Period, and any conversions for which the relevant Conversion Date occurs on or after ~~November~~ February 15, 2025, the ~~Issuer~~ Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. (iii) If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, or for which the ~~Issuer~~ relevant Conversion Date occurs on or after February 15, 2025), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion ~~Date~~Date (or such period, as the case may be), the ~~Issuer~~ Company shall deliver such Settlement Notice ~~in writing~~ to ~~the Holders with a copy 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~~ conversion for which the relevant Conversion Date occurs (x) ~~after the date of issuance of~~ during a Redemption ~~Notice with respect to the Notes and prior to~~ Period in the related Notice of Redemption ~~Date, in such Redemption Notice~~ or (y) on or after ~~November~~ February 15, 2025, no later than ~~November~~ the close of business on the Business Day immediately preceding February 15, 2025). If the ~~Issuer~~ Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the ~~Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to such conversion and the Issuer~~ Company shall be deemed to have elected ~~Combination~~ the Default Settlement Method in respect of its Conversion ~~Obligation,~~ Obligation and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the ~~Issuer~~ Company timely 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. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify the applicable Specified Dollar Amount will not constitute a Default or Event of Default under this Indenture. (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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (and cash in lieu of fractional shares as provided herein)~~Date; (B) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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 (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the ~~Issuer~~ Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. (b) 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) 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~~ facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable 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 ~~or by facsimile~~ 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 ~~Issuer~~ 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 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 any taxes payable as described in Section 14.02(d) or Section 14.02(e~~). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ 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 Holder has also delivered a Fundamental Change Repurchase Notice to the ~~Issuer~~ 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~~ is 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 ~~Issuer~~ 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 ~~Issuer~~ Company elects to satisfy its Conversion Obligation through Physical Settlement (provided ~~that for~~ that, with respect to any ~~Notes converted after the close of business on~~ Conversion Date following the Regular Record Date immediately preceding the Maturity ~~Date~~Date where Physical Settlement applies to the related conversion, the ~~Issuer shall deliver the consideration due in respect of the Conversion Obligation~~ Company will settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting ~~Holders~~Holder, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Note shall be surrendered for partial conversion, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ Company shall not adjust the Conversion Rate for any accrued and unpaid interest on ~~any converted~~ the Notes. The ~~Issuer~~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 ~~not including~~excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but ~~not including~~excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of 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. 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 ~~shall~~ 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~~ Date, however, must be accompanied by funds equal to the amount of interest payable on the Notes so ~~converted~~converted on the corresponding Interest Payment Date (regardless of whether such 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 close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the ~~Issuer~~ Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the ~~Business~~ Trading Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made~~Interest Payment Date; (3) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately ~~following the date on which~~ succeeding the corresponding ~~interest payment is made~~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 or~~ Date, any Redemption Date described in clause (2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following such Regular Record Date. (i) The Person in whose name ~~any~~ the shares of Common Stock ~~delivered~~ shall be issuable upon conversion ~~is registered~~ shall be ~~deemed to be~~ treated as the ~~holder~~ stockholder of record ~~of such shares~~ as of the close of business on the relevant Conversion Date (in if the ~~case of~~ Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (in if the ~~case of~~ 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 as of the time immediately prior to the close of business on the Conversion Date~~conversion. (j) The ~~Issuer~~ 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 (~~Period, in the case of Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected (or is deemed to have elected) Combination 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 (Varonis Systems 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, the ~~Issuer shall~~ Company 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 converted~~its Conversion Obligation, cash (“Cash Settlement”), shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with ~~subsection (j~~Section 14.02(i) ~~of this Section 14.02~~ (“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 ~~subsection (j~~Section 14.02(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 Date occurs on or after ~~November~~ August 15, ~~2025,~~ 2023 and all conversions ~~for which the relevant Conversion Date occurs~~ occurring after the ~~Issuer’s issuance~~ date the Company issues a Notice of ~~a Redemption Notice with respect to the Notes~~ Tax Redemption, and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, shall be settled using the same Settlement ~~Method.~~ Method (~~ii)~~ including the same relative proportion of cash and/or shares of the Common Stock). Except for ~~any conversions for which the relevant Conversion Date occurs after the Issuer’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 ~~November~~ August 15, ~~2025~~2023 or after the date of the issuance of a Notice of Tax Redemption and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, the ~~Issuer~~ Company shall use the same Settlement Method (including the same relative proportion of cash and/or shares of the Common Stock) for all conversions with the same Conversion Date, but the ~~Issuer~~ Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates. By notice to Holders of the Notes, the Company may, prior to August 15, 2023, at its option, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or a minimum Specified Dollar Amount), or eliminate the right to elect a Settlement Method, for all Conversion Dates occurring subsequent to delivery of such notice. (~~iii~~ii) ~~If, in respect of any Conversion Date~~If the Company elects a Settlement Method, the ~~Issuer elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date, the Issuer~~ Company shall deliver ~~such Settlement Notice in writing~~ notice to ~~the~~ Holders ~~with a copy to the Trustee and~~ 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 (A) in the case of any conversions for which the relevant Conversion Date occurs on or after August 15, 2023, no later than August 15, 2023 or (xB) in the case of any conversions occurring after the date of issuance of a Notice of Tax Redemption ~~Notice with respect to the Notes~~ and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Tax Redemption Date, in such ~~Redemption~~ Notice ~~or (y) on or after November 15, 2025, no later than November 15, 2025~~of Tax Redemption). If the ~~Issuer~~ Company does not timely elect a Settlement ~~Method prior to the deadline set forth in the immediately preceding sentence~~Method, the ~~Issuer~~ Company shall no longer have the right to elect ~~Cash~~ Combination Settlement or Physical Settlement with respect to ~~such conversion~~ that Conversion Date and the ~~Issuer~~ Company shall be deemed to have elected ~~Combination~~ Cash Settlement in respect of its Conversion Obligation~~, and~~ . If the ~~Specified Dollar Amount per $1,000 principal amount~~ Company has timely elected Combination Settlement in respect of ~~Notes shall be equal to $1,000. Such Settlement Notice shall specify~~ any conversion but does not timely notify the ~~relevant Settlement Method and in the case~~ Conversion Agent 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 Issuer 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. (iviii) 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 (the “Settlement Amount”) shall be computed by the Company as follows: (A) if the ~~Issuer~~ Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the ~~Issuer~~ 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 (~~and~~ plus cash in lieu of any fractional ~~shares as provided herein~~share of Common Stock issuable upon conversion); (B) if the ~~Issuer~~ Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the ~~Issuer~~ 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 20 consecutive VWAP Trading Days during the related Observation Period; and (C) if the ~~Issuer~~ Company elects ~~(or is deemed to have elected)~~ to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the ~~Issuer~~ 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,~~ converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 20 consecutive VWAP Trading Days during the related Observation ~~Period~~Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 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 so surrendered. (viv) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the ~~Issuer~~ Company promptly following the last ~~day~~ 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~~ and, if applicable, the amount of cash payable in lieu of ~~delivering~~ any fractional share of Common Stock, the ~~Issuer~~ 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~~ 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 Section 14.02(e~~To convert a beneficial interest in a Global Note (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 ~~procedures of the Depositary in effect at that time and,~~ 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e) (and therefore such Holder must allow for sufficient time to comply with the Depositary’s procedures if such Holder wishes to exercise its conversion rights) and 14.02(g); 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 thereof) (a “Notice of Conversion”) ~~at the office of the Conversion Agent or by facsimile~~ 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 Issuer 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; (4C) 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(h) and any taxes payable as described in Section 14.02(d) or Section 14.02(e~~14.02(g). The Trustee (and if different, the Conversion Agent) shall notify the ~~Issuer~~ Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. ~~No Notice of Conversion with respect to any Notes may be surrendered by~~ If a Holder ~~thereof if such Holder~~ has ~~also~~ already delivered a Fundamental Change Repurchase Notice with respect to ~~the Issuer 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 surrendered~~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 (b) above~~Section 14.02(b). ~~Except as set forth in~~ Subject to the next paragraph and the provisions of Section 14.03(b) and Section 14.07(a), the ~~Issuer~~ 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 Business Day immediately following the relevant Conversion Date, if the ~~Issuer~~ Company elects Physical ~~Settlement~~ Settlement; or (provided that for any Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date, the Issuer shall deliver the consideration due in respect of the Conversion Obligation on the Maturity Date), or on ii) the second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, in if the ~~case of any other~~ Company elects Combination Settlement ~~Method~~or if the Company elects or is deemed to elect Cash Settlement. If any shares of Common Stock are due to converting Holders, the ~~Issuer~~ 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 ~~Issuer~~Company’s Conversion Obligation. (d) In case any Certificated Note shall be surrendered for partial conversion, in an Authorized Denomination, the ~~Issuer~~ 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 ~~Issuer~~ 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 ~~Issuer~~ 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~~conversion of such Note, 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 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 ~~Issuer~~ Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (hg) Upon ~~conversion~~conversion 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~~, and the Issuer shall not adjust the Conversion Rate for any accrued and unpaid interest on any converted Notes~~. The ~~Issuer~~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 not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than ~~cancelled~~canceled, extinguished or forfeited. Upon a conversion of Notes 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. Notwithstanding the ~~foregoing~~immediately preceding paragraph, if Notes are converted after the close of business on a Regular Record Date for the payment of interest, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes ~~as of~~ at the close of business on such Regular Record Date 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~~converted 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 ~~Issuer~~ Company has ~~specified~~ called the Notes for Tax Redemption on a Tax Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made;~~ Interest Payment Date; (3iii) if the ~~Issuer~~ Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the ~~date on which the~~ corresponding ~~interest payment is made~~Interest Payment Date; or or (4iv) to the extent of any ~~Defaulted Amounts~~overdue 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 and any Tax Redemption ~~Date~~ as described in clauses (ii) and (iii) above shall receive and retain the full interest payment due on the Maturity Date or ~~such Redemption Date, as applicable,~~ other applicable Interest Payment Date regardless of whether their Notes have been converted following such Regular Record Date. (ih) The Person in whose name any shares of Common Stock delivered upon conversion is registered shall ~~be deemed to be~~ 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 Physical Settlement~~ii) or the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects 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 time immediately prior to~~ the close of business on such Regular Record Date shall have the ~~Conversion~~ right to receive the interest payable on such Interest Payment Date, in accordance with Section 14.02(g). (ji) The ~~Issuer~~ 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 ~~for~~ on the relevant Conversion Date if the Company elects Physical Settlement or (~~in the case of Physical Settlement~~ii) ~~or based on~~ the Daily VWAP ~~for~~ on the last VWAP Trading Day of the relevant Observation Period ~~(in~~ if the ~~case of~~ Company elects Combination Settlement). For each Note surrendered for conversion, if the ~~Issuer~~ Company has elected ~~(or is deemed to have elected)~~ Combination 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 (Royal Caribbean Cruises LTD)

Common use of Conversion Procedure; Settlement Upon Conversion Clause in Contracts