Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date. (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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. (c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction of the Company’s Conversion Obligation. (d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion. (e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs. (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14. (g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee. (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied. (i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. (j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 3 contracts
Samples: Indenture (Baidu, Inc.), Indenture (iQIYI, Inc.), Indenture (Pacific Alliance Group LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any ADSs (“Fractional ADSs”) that would represent a fractional ordinary share (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ordinary share) in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. A Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 2 contracts
Samples: Indenture (Ctrip Com International LTD), Indenture (Ctrip Com International LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 book-entry transfer to the Conversion Agent through the facilities of the Depositary and, if required, pay funds to the Issuer directly equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i) and, if required, pay documentary, stamp or similar issue or transfer tax, if any, and provide an original signed notice of conversion with a medallion guaranty stamp on the reverse side of the Note as set forth in the Form of Notice of Conversion (a “Notice of Conversion”) and/or other appropriate clearing agency message and effect book-entry transfer or delivery of the Notes, together with necessary endorsements and (ii) in the case of a Physical Note (1) complete, complete and manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “facsimile of the Notice of Conversion”, (2) at deliver the office original Notice of Conversion with a medallion guaranty stamp and/or appropriate clearing agency message, which is irrevocable, and the Note to the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, and, ADS delivery instructions and pay applicable Depositary fees directly, (4) if required, pay to the Issuer directly 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)14.02(i) and (5) if required, pay any tax or duty which may be payable in respect of any transfer involving the issue or delivery of the ADSs in the name of a Person other than such Holder. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above, provided that such procedures must be complied with on or prior to 2:00 PM (New York time) on a Business Day in order for the conversion to be processed on the same date. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any the ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company ADS Depositary may refuse to deliver the certificates representing the ADSs being issued in a name other than the Holder’s name until the ADS Depositary receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Holder shall pay to the ADS Depositary’s Depositary the applicable fees and expenses of the ADS Depositary for the issuance of the ADSsall ADSs deliverable upon conversion.
(f) The Company shall undertake to maintain, as long as the Notes are outstanding, the effectiveness of a registration statement on Form F-6 relating to the ADSs and an adequate number of ADSs available for issuance thereunder such that ADSs can be delivered in accordance with the terms of this Indenture, the Notes and the Deposit Agreement upon conversion of the Notes.
(g) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(gh) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hi) Upon conversion, a Holder shall not receive any separate cash payment for or any Additional ADSs accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date and before the close of business on the third Business Day immediately preceding the Maturity Date; (2) if the Company has specified a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(ij) The Person in whose name the certificate for any ADSs delivered upon conversion is registered shall be issuable upon conversion shall be treated as a stockholder deemed to become the holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(jk) The Company shall not issue cause to be delivered any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 2 contracts
Samples: Indenture (Qihoo 360 Technology Co LTD), Indenture (Qihoo 360 Technology Co LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(c), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date Business Day (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice (the requirements set forth “Conversion Notice”) and the Note for cancellation to the conversion agent (as specified in subsection (b) the Indenture). Within three Business Days after the delivery of the Note and the Conversion Notice to the Conversion Agent pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Ordinary Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) if required by applicable Law, deliver to the Company’s Holder certificate(s) representing the number of Ordinary Shares delivered upon each such conversion and (iii) subject to Section 3.3(c), cancel (or cause the cancellation of) the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice or a Founder Departure Repurchase Notice to the Conversion Agent in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice or Founder Departure Repurchase Notice in accordance with ARTICLE 5.
(db) The Company shall not issue any fractional Ordinary Share upon conversion of the Note and shall instead pay cash in lieu of any fractional Ordinary Share deliverable upon conversion based on the Last Reported Sale Price of the Ordinary Shares on the relevant Conversion Date.
(c) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling (or causing the cancellation of) the Note upon such surrender, execute and the Trustee shall authenticate and deliver deliver, or procure to or upon the written order of be delivered, to the Holder of the Note so surrendered a new Note or Notes note in authorized denominations and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ed) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs the Ordinary Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Conversion Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(fe) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this ARTICLE 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 the Holder of such Notes notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of Ordinary Shares upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date or a Founder Departure Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Except as provided in whose name any ADSs Section 4.2, no adjustment shall be issuable made for dividends on any Ordinary Shares issued upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this ARTICLE 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 2 contracts
Samples: Indenture (MakeMyTrip LTD), Convertible Notes Purchase Agreement (Ctrip Com International LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(c), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company (bthe “Conversion Notice”) and the Note for cancellation to the Company. Within three Business Days after the delivery of the Note and the Conversion Notice to the Company pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) if required by applicable Law, deliver to the Company’s Holder certificate(s) representing the number of ADSs delivered upon each such conversion and (iii) subject to Section 3.3(c), cancel the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ARTICLE 5.
(db) The Company shall not issue any Fractional ADS upon conversion of the Note and shall instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the Last Reported Sale Price of the ADSs on the relevant Conversion Date.
(c) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, 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 note denominated in authorized denominations U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ed) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon such conversion of the Notes Note (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(ge) Upon the conversion of an interest in a Global Noteany conversion, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this ARTICLE 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 Holder will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of ADSs upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Except as provided in whose name Section 4.2, no adjustment shall be made for dividends on any ADSs shall be issuable delivered upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this ARTICLE 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 2 contracts
Samples: Convertible Note Purchase Agreement (Priceline Group Inc.), Convertible Note Purchase Agreement (Priceline Group Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.01, Section 14.02, this Section 14.03 and Section 14.08(a), upon conversion of any NoteNote pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder, in respect Holder shares of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateCommon Stock, together with a cash payment, if applicable, payment in lieu of delivering any fractional ADSs share as set forth below under Section 14.03(c) (or such Reference Property pursuant to Section 14.08 in lieu of such Common Stock), at the Change of Control Conversion Rate; or (ii) Section 14.02, the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a Conversion Rate in accordance with subsection (j) of this Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the second Business Day immediately following the relevant Conversion DateDate (or such other date that may be applicable pursuant to a conversion in accordance with Section 14.03(c) or Section 14.03(k)). A Holder may convert fewer than all of such Xxxxxx’s Notes.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) if such Holder would have a filing and waiting period or approval requirement in advance of such conversion under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any other antitrust, merger control, or competition law (collectively with the HSR Act, the “Antitrust Laws”) make or cause to be made by its ultimate parent entity as that term is defined in the case of a Global Note, comply with HSR Act any such required filings under 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) Antitrust Laws and obtain any required waiting period expirations or terminations or approvals; (ii) in the case of a Physical Note )
(1) complete, manually sign and deliver a duly completed an irrevocable (except as set forth in clause (c)) notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and that the Company or the Conversion Agent may reasonably require, (4) if required, pay all transfer, stamp and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h). The Trustee Representative (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Change of Control Repurchase Notice, as the case may be, Notice in accordance with Section 15.0315.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, 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. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction of the Company’s Conversion Obligation.the
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must 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 Company shall receives a sum sufficient to pay any tax that is due by such Xxxxxx in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.[Intentionally Omitted]
Appears in 2 contracts
Samples: Note Issuance Agreement (Appgate, Inc.), Note Issuance Agreement (Appgate, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Hxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case If any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the such tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that such tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 2 contracts
Samples: Indenture (Photronics Inc), Indenture (Photronics Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 $1.00 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (ji) of this Section 14.02 14.04, on the second third Business Day immediately following the relevant Conversion Date. Notwithstanding anything to the contrary herein, the Company shall not be required to issue any fraction of a share of Common Stock upon exercise of any Note; provided that the Company makes the cash payment in lieu of such fractional share.
(b) Subject to Section 14.02(e14.04(e), before any Holder of a Note shall be entitled to convert a Note as set forth abovepursuant to an Optional Conversion, 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, Agent and (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and or if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. Any Note converted pursuant to a Mandatory Conversion shall be deemed to have been submitted or surrendered for conversion by the Holder thereof for all purposes of this Indenture.
(c) A Note shall be deemed to have been converted (x) in the case of an Optional Conversion, immediately prior to the close of business on the date (the “Optional Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due above or (y) subject to Section 14.03(b), in the case of a converting HolderMandatory Conversion, immediately prior to the close of business on the date (together with the Optional Conversion Date, the “Conversion Date”) that a Mandatory Conversion Event has occurred. The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the certificate form required by Section 2.05(d), or in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 Conversion Agent receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.06, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(ji) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 2 contracts
Samples: Indenture (Sandridge Energy Inc), Indenture (Integra Energy, L.L.C.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 14.13, upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (jSection 14.02(l) of as set forth in this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02.
(b) Subject to Section 14.02(e14.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i) and (ii) in the case of a Physical an Uncertificated Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF facsimile or other electronic transmission email thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, which shares shall be issued as indicated in the Notice of Conversion, (2) if required, furnish appropriate endorsements and transfer documents and (3) 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(i), and (iii) 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 email thereof) (a “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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, which shares shall be issued as indicated in the Notice of Conversion, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i). The Trustee (and or if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, delivered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company an election to have any Notes purchased pursuant to any Change of Control Offer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, election in accordance with Section 15.0315.05. 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 (bSection 14.02(b). Except as set forth in Section 14.03(b) aboveand Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation and the Interest Make-Whole Payment on the second Business Day immediately following the relevant Conversion Date. If any ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Noteif such facilities are then available), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.02(j) and except as set forth below, upon any conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, . Subject to Section 14.02(j) and except as set forth below. The , the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will 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 Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Mandatory Conversion Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change of Control Repurchase Date that is after a Regular an Interest Record Date and on or prior to the Business Day immediately succeeding following the date on which the corresponding Interest Payment Date interest payment is made; (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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; or (4) for any conversion of Notes as to which an Interest Make-Whole Payment is payable (or Section 14.02(j) is otherwise applicable). Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Interest Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Interest Record Date.
(i) Upon any conversion, other than a conversion in connection with a Make-Whole Fundamental Change, the Company will, in addition to the other consideration payable or deliverable in connection with such conversion, make an interest make-whole payment to the converting Holder equal to the sum 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 Conversion Date through the earlier of (x) the second anniversary of the Conversion Date or (y) the Maturity Date (the “Interest Make-Whole Payment”); provided that if the applicable Conversion Date occurs after the close of business on an Interest Record Date but prior to the open of business on the Interest Payment Date corresponding to such Interest Record Date, the Company shall not pay accrued interest to any converting Holder and will instead pay the full amount of the relevant interest payment on such Interest Payment Date to the Holder of record on such Interest Record Date. In such case, the Interest Make-Whole Payment to such converting Holder will equal all remaining interest payments, starting with the next Interest Payment Date for which interest has not been provided for until the earlier of (x) the second anniversary of the Conversion Date or (y) the Maturity Date. The Company shall have sole responsibility for calculating the Interest Make-Whole Payment, which in the absence of manifest error shall be conclusive and binding on the Holder, and shall pay the Interest Make-Whole Payment either (A) in cash or, (B) if the Beneficial Ownership Limitations would not limit such payment, by delivery of shares of Common Stock freely tradable in the United States, with the value of each share of Common Stock so delivered equal to 95% of the simple average of the Daily VWAP for the 5 Trading Days ending on, and including, the Trading Day immediately preceding the Conversion Date, provided such price exceeds the greater of $0.10 per share or the minimum price permitted by the TSX-V (or such other principal Canadian stock exchange on which the shares of Common Stock may be listed). In the event a per-share value equal to 95% of the simple average of the Daily VWAP for the 5 Trading Days ending on and including, the Trading Day immediately preceding the Conversion Date is less than $0.10 per share or the minimum price permitted by the TSX-V, the Company shall pay the Interest Make-Whole Payment in cash. The Company shall notify the converting Holder of the Company’s election to pay any part of the Interest Make-Whole Payment in shares of Common Stock no later than the close of business on the Trading Day immediately following the relevant Conversion Date.
(j) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(jk) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes (including any shares of Common Stock to be issued in connection with an Interest Make-Whole Payment) and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date. Notwithstanding this Section 14.02(k) or anything herein to the contrary, if the dollar amount of the cash payment owing by the Company in lieu of a fractional entitlement to shares of Common Stock is less than $10.00, no such cash payment is required to be made.
(l) The certificates or other instruments representing shares of Common Stock delivered in satisfaction of any Interest Make-Whole Payment shall be issued without any restrictive legend under Applicable Securities Legislation and shall be unrestricted shares that are freely tradable by Holders other than the Company’s Affiliates (or Holders that were not the Company’s Affiliates at any time during the three immediately preceding months) pursuant to (i) applicable Canadian Securities Law and the rules of any stock exchange on which the securities of the Issuer may then be listed, and an effective registration statement that has been declared effective under the Securities Act with a current prospectus available for immediate sale.
Appears in 2 contracts
Samples: Indenture (Electra Battery Materials Corp), Indenture (Electra Battery Materials Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs “Settlement Amount” equal to the Conversion Ratesum of the Daily Settlement Amounts for each of the 25 Trading Days during the applicable Observation Period for such Note, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 on 14.02. The Daily Settlement Amounts (if applicable) and the second Business Day immediately Daily Conversion Values (if applicable) shall be determined by the Company promptly following the relevant last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion DateValues, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs shares of Common Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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, 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 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Datelast Trading Day of the related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP on the Last Trading Day of the applicable Observation Period. For each Note surrendered for conversion, 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 Conversion Dateapplicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 2 contracts
Samples: Indenture (Lam Research Corp), Indenture (Lam Research Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.01, Section 14.02, this Section 14.03, Section 14.04(b) and Section 14.08(a), upon conversion of any NoteNote pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder, in respect Holder shares of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateCommon Stock, together with a cash payment, if applicable, payment in lieu of delivering any fractional ADSs share as set forth below under Section 14.03(c), at a conversion rate in accordance with subsection Section 14.01 (jas adjusted pursuant to Section 14.05, as applicable); or (ii) of this Section 14.02 (subject to the final proviso thereto), the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a conversion rate in accordance with Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time (allowing for sufficient time to comply) and, if required, (1) pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h) and (2) pay all transfer and similar taxes as set forth in Section 14.03(d) and Section 14.03(e); and (ii) in the case of a Physical Note Note, (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice, a Specified Repurchase Date Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or Change of Control Repurchase Notice, as the case may be, Notice in accordance with Section 15.0315.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, 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. If any ADSs are due to a converting HolderOn the third (3rd) Business Day immediately following the relevant Conversion Date, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation or the Change of Control Conversion Obligation, as the case may be.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Sections 14.01 and 14.02, upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation or Change of Control Conversion Obligation, as applicable, 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 includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars cash funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the date on which the corresponding Interest Payment Date (or, if such Interest Payment Date interest payment is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date)made; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (4) if the Company has specified a Change of Control Repurchase Date (or, if such Interest Payment that is after a Regular Record Date is not a Business Day, and on or prior to the second Business Day immediately succeeding such following the corresponding 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; or (6) if the Specified Repurchase Date is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date, any Specified Repurchase Date, any Fundamental Change Repurchase Date described in clause (if 3), any Change of Control Repurchase Date described in clause (4) and any Redemption Date described in clause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon a conversion of Notes shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon a conversion based on (A) if the Daily VWAP for Conversion Date occurs prior to the consummation of a Qualified IPO, the fair market value on the relevant Conversion Date of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such Conversion Date) and (B) otherwise, the Last Reported Sale Price of the Common Stock on the relevant Conversion Date. The Company shall pay such cash amount on or before the third (3rd) Business Day following the Conversion Date, or, if the fair market value of the Company’s Common Stock is in dispute pursuant to clause (A) of this Section 14.03(j), then the Company shall pay such cash amount to the applicable Holders on or before the third (3rd) Business Day following determination of such fair market value.
Appears in 2 contracts
Samples: Indenture (Bloom Energy Corp), Indenture (Bloom Energy Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(b), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company (bthe “Conversion Notice”) aboveand the Note for cancellation to the Company. If any ADSs are due Within five (5) Business Days after the delivery of the Note and the Conversion Notice to a converting Holderthe Company, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Class A Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) deliver to the Holder certificate(s) representing the number of Class A Shares delivered upon each such conversion, (iii) deliver to the Holder a certified copy of the register of members of the Company, reflecting the Holder’s ownership of the Class A Shares delivered upon each such conversion, and (iv) subject to Section 3.3(b), cancel the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Article 5.
(db) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, 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 note denominated in authorized denominations U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ec) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs the Class A Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case (i) if in the name of any Person which is an Affiliate of the Holder, the Company shall pay that tax or (ii) if in the name of any other Person, the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant fees for issuance of the Class A Shares and shall pay the relevant depositary’s fees for any future conversion of the issuance of issued Class A Shares into the ADSs.
(fd) Except as provided in Section 14.044.1, no adjustment shall be made for dividends on any ADSs issued Class A Shares delivered upon the any conversion of any this Note as provided in this Article 143.
(ge) Upon Without prejudice to the conversion of an Holder’s right to receive the interest in a Global Noteaccordance with Section 3.3(h), the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this Article 3 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfiedconverted.
(if) The Person Holder in whose name the certificate for any ADSs shall be issuable Class A Shares delivered upon conversion is registered shall be treated as a stockholder holder of record of such Class A Shares as of the close of business on the relevant Conversion Date. Upon a conversion of Notesthe entire outstanding amount of the Note, such Person the Holder shall no longer be a Holder holder of such Notes the Note surrendered for conversion.
(jg) The Company shall not issue any fractional ADSs Class A Share upon conversion of the Notes Note and shall instead pay cash in lieu of delivering any fractional ADS issuable Class A Share deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Class A Shares on the relevant Conversion Date.
(h) Nothing in this Article 3 shall prejudice the Holder’s entitlement to receive interest on any of the Defaulted Amounts in accordance with Section 2.6.
Appears in 2 contracts
Samples: Convertible Notes Subscription Agreement (NIO Inc.), Convertible Notes Subscription Agreement (NIO Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j(j) of this Section 14.02 Section 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b(b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Common Shares), unless the tax is due because the Holder requests such ADSs (or the such Class A Ordinary Common 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 ADSs (or the Class A Common 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 Hxxxxx in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has delivered a Tax Redemption Notice pursuant to Article 16 and has specified therein a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) Maturity Date will have any duty to determine or verify determination by receive the Company full amount of interest payable on such Notes on the Maturity Date, regardless of whether any of the conditions to conversion such Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (YY Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs Subordinate Voting Shares equal to the Conversion RateRate in effect on the Conversion Date, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs Subordinate Voting Share in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02, as set forth in this Section 14.02.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Definitive Note or any Global Notes that are converted outside of the Depositary (1) complete, manually sign and deliver a duly completed 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 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 ADSs Subordinate Voting Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and 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) provide any other information as requested by the Conversion Agent to effect such conversion. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversionconversion (or as soon as practicable thereafter). No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0315.02(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 (bi) above. If any ADSs are due to a converting HolderExcept as set forth in Section 14.03(b) and Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs Subordinate Voting Shares to which such Holder shall be entitled, in book-entry format through the Depositary orDepositary, in the case of ADSs bearing restrictive legends substantially Global Notes, or in certificated form, in the form required by Section 2.05(d)case of Definitive Notes, in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)each case, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or 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 Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs Subordinate Voting Shares upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Conversion Agent may refuse to deliver the certificates representing the Subordinate Voting 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs Subordinate Voting 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the Subordinate Voting Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Subordinate Voting Shares upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS Subordinate Voting Shares issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Subordinate Voting Shares on the relevant Conversion Date or, if the Conversion Date is not a Trading Day, on the next succeeding Trading Day. The Company shall determine the cash in lieu and provide its determination and such calculations to the Trustee and Conversion Agent within one Business Day following the Conversion Date. The calculation shall be done on a per instruction basis if more than one Holder converts on the same day.
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Conversion Procedure; Settlement Upon Conversion. (a1) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second third Business Day immediately following the relevant Conversion Date.
(b2) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, effect a book-entry transfer of such Note to the Conversion Agent through the facilities of the Depositary and comply with the Depositary’s then-applicable conversion procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, 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(h13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c3) 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d4) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e5) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs the shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesand any expense (including reasonable attorneys’ fees) due in connection therewith, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f6) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 1413.
(g7) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) 8) Upon conversion, a Holder shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except unless such Holder is the Holder on a Regular Record Date and such conversion occurs between such Regular Record Date and the Interest Payment Date to which it relates as set forth below. The Except as set forth below, the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from by a Holder 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided provided, however, that no such payment shall be required required: (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (2) with respect to any Notes surrendered for conversion following the Regular Record Date (or, if such Interest Payment Date is not a Business Day, immediately preceding the third Business Day immediately succeeding such Interest Payment Maturity Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) only to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent ; or (if 4) in connection with any conversion of Notes, other than any conversion in connection with a Make-Whole Adjustment Event, that occurs prior to [__]. As a result of the Trustee) will have any duty to determine or verify determination by foregoing, the Company of whether any of shall pay interest on the conditions Maturity Date on all Notes converted after the Regular Record Date immediately preceding the Maturity Date, and converting Holders will not be required to conversion have been satisfiedpay the Company an equivalent interest amount.
(i9) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion, except for purposes of enforcing its right to receive (x) the consideration due upon conversion, and (y) in the case of a conversion following a Regular Record Date and prior to the related Interest Payment Date, interest payable on such Notes.
(j10) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(11) 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
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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) Article 16 in the case of a Global Note, effect a book-entry transfer of such Note to the Conversion Agent through the facilities of the Depositary and comply with the Depositary’s then-applicable conversion procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) Article 17 in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs the shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesand any expense (including reasonable attorneys’ fees) due in connection therewith, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.06, upon conversion, a Holder shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except unless such Holder is the Holder on a Regular Record Date and such conversion occurs between such Regular Record Date and the Interest Payment Date to which it relates as set forth below. The Except as set forth below, the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from by a Holder 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (2) with respect to any Notes surrendered for conversion following the Regular Record Date (or, if such Interest Payment Date is not a Business Day, immediately preceding the third Business Day immediately succeeding such Interest Payment Maturity Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) only to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent ; or (if 4) in connection with any conversion of Notes, other than any conversion in connection with a Make-Whole Adjustment Event, that occurs prior to September 15, 2016. As a result of the Trustee) will have any duty to determine or verify determination by foregoing, the Company of whether any of shall pay interest on the conditions Maturity Date on all Notes converted after the Regular Record Date immediately preceding the Maturity Date, and converting Holders will not be required to conversion have been satisfiedpay the Company an equivalent interest amount.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion, except for purposes of enforcing its right to receive (x) the consideration due upon conversion and (y) in the case of a conversion following a Regular Record Date and prior to the related Interest Payment Date, interest payable on such Notes.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(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 (GSV Capital Corp.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second third Business Day immediately following the relevant Conversion Date, unless such Conversion Date occurs on or following July 1, 2014, in which case the Company shall make such delivery on the Maturity Date.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note the same as set forth above, such Holder shall 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(h13.02(h) and and, if required, pay all taxes or duties, if any, as set forth in Section 13.02(e); and
(ii) in the case of a Physical Note Note, (1) complete, manually complete and sign and deliver a duly completed irrevocable conversion notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”), (2) at deliver the Notice of Conversion, which is irrevocable, to the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (23) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (34) if required, furnish appropriate endorsements and transfer documents documents, (5) if required, pay all transfer or similar taxes as set forth in Section 13.02(e) and (46) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions for date of such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary (in the case of any conversion of a beneficial interest in a Global Note) for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation pursuant to this Section 13.02.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) any shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full its 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will receive the full amount of 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 Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date that is after a Regular an Interest Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of with respect to such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date. If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock that shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof) so surrendered.
Appears in 1 contract
Samples: Indenture (Avis Budget Group, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of whole ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Sharesordinary shares), unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Sharessuch ordinary shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the ordinary shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has delivered a Tax Redemption Notice pursuant to Article 16 and has specified therein a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) Maturity Date will have any duty to determine or verify determination by receive the Company full amount of interest payable on such Notes on the Maturity Date, regardless of whether any of the conditions to conversion such Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Trina Solar LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any NoteNote and subject to Section 14.02(k), the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Dateconversion date.
(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 and ADS Depositary in effect at that time to convert such Note (for the avoidance of doubt, including, in the case of a Restricted Security, delivering the notice included as Attachment 7 to the Form of Note attached hereto as Exhibit A) 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 pay the applicable fees and expenses of the depositary for the issuance of the ADSs, as described in the deposit agreement (which fees and expenses shall not exceed US$0.05 per ADS deliverable upon conversion), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered registered upon settlement of the Conversion Obligation to be registeredObligation, (2) surrender such Physical Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h), (5) if required, pay all transfer and similar taxes or duties, (6) comply with the procedures of the ADS Depositary in effect at that time to convert such Note (for the avoidance of doubt, including, in the case of a Restricted Security, delivering the notice included as Attachment 7 to the Form of Note attached hereto as Exhibit A) and (7) pay the applicable fees and expenses of the depositary for the issuance of the ADSs, as described in the Deposit Agreement (which fees and expenses shall not exceed US$0.05 per ADS deliverable upon conversion). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. Delivery of a Notice of Conversion to the Conversion Agent by a Holder shall be deemed to be an acknowledgment by such Holder that such Notice of Conversion may be relied upon by the ADS Depositary with respect to the issuance of ADSs, as described in the Deposit Agreement. The Conversion Agent will immediately forward any Notice of Conversion to the ADS Depositary. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, a book-entry transfer through the Depositary for the full number of whole ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNotes, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company may refuse to deliver the certificates representing the ADSs being issued in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall also pay and/or indemnify each Holder and beneficial owners of the ADS Depositary’s Notes and/or ADSs issuable upon conversion of the Notes for applicable fees and expenses payable to, or withheld by, the Depositary (including, for the avoidance of doubt, by means of a reduction in any amounts or property payable or deliverable in respect of any ADSs or in the value of deposited amounts or property represented by any ADSs) for the issuance of all ADSs deliverable upon conversion to the ADSsextent such fees and/or expenses exceed US$0.05 per ADS.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to but before the open of business on the corresponding Interest Payment Date corresponding to such Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes notes surrendered for conversion during the period from after 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has delivered a Tax Redemption Notice pursuant to Article 16 and has specified therein a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the third Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) Maturity Date will have any duty to determine or verify determination by receive the Company full amount of interest payable on such Notes on the Maturity Date, regardless of whether any of the conditions to conversion such Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs (x) on the relevant Conversion Date, or (y) if such Conversion Date is not a Trading Day, on the Trading Day immediately preceding such Conversion Date.
(k) If a Conversion Date occurs (i) following the Regular Record Date immediately preceding the Maturity Date, subject to clause (ii) below, the Company will make such delivery (and payment, if applicable) on the Maturity Date or (ii) after ordinary shares of the Company have been replaced by reference property consisting solely of cash in accordance with Section 14.07, the Company will pay the consideration due in respect of conversion on the tenth Business Day immediately following the related Conversion Date.
Appears in 1 contract
Samples: Indenture (GDS Holdings LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting HolderHolder on the second Business Day immediately following the relevant Conversion Date, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs Common Shares equal to the Conversion Rate, together with a cash payment, if applicableunless such Conversion Date occurs following the Regular Record Date immediately preceding the Maturity Date, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 which case the Company shall make such delivery on the second Business Day immediately following the relevant Conversion Maturity Date.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the designated corporate trust office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the designated corporate trust office of the Conversion Agent, (3) if required, pay all applicable transfer or similar taxes, if any, pursuant to Section 14.02(e), (4) if required, furnish appropriate endorsements and transfer documents and (45) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs Common Shares to which such Holder shall be entitled, entitled in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting #96856647v2 Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be is imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance of the underlying Class A Ordinary SharesCommon Shares upon conversion, unless (i) the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that taxtax or (ii) the tax consists of Luxembourg registration duties (droits d’enregistrement) payable in the case of voluntary registration of the conversion by a Holder with the Administration de l’Enregistrement, des Domaines et de la TVA in Luxembourg, or registration of the conversion in Luxembourg when such registration is not reasonably required to enforce the rights of that Holder under the Notes. The Company shall pay Conversion Agent may refuse to deliver the ADS Depositarycertificates representing the Common Shares being issued in a name other than the Holder’s fees for name until the issuance of Holder pays any tax that is due by such Holder in accordance with the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs Common 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all applicable Holders of record at the Conversion Agent (if other than close of business on the Trustee) will have any duty to determine or verify determination by Regular Record Date immediately preceding the Company Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the Common Shares shall be issuable upon conversion shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Common Share upon conversion of the Notes and shall instead pay cash Notes. Instead, in lieu of delivering any fractional ADS issuable Common Share being delivered to any converting Holder, the number of fractional Common Shares otherwise deliverable upon conversion based on to any such converting Holder shall be aggregated and then rounded up to the Daily VWAP for the relevant Conversion Datenearest whole Common Share.
Appears in 1 contract
Samples: Indenture (INVACARE HOLDINGS Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 13.02, Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date; provided that to the extent provided in Section 13.12, together with a the Company may elect to pay to the converting Holder cash payment, if applicable, in lieu of delivering the shares of Common Stock that would otherwise deliverable upon conversion of such Notes. If the Company elects to pay cash in lieu of shares of Common Stock under such circumstances set forth in Section 13.12, the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, an amount in cash equal to the sum of the Daily Conversion Values for each of the 15 consecutive Trading Days during the related Observation Period. The Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Conversion Values and the amount of cash payable in lieu of any fractional ADSs in accordance with subsection share, the Company shall notify the Trustee and the Conversion Agent (jif other than the Trustee) of this Section 14.02 on the second Business Day immediately following Daily Conversion Values and the relevant amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion DateAgent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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) all taxes or duties, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)all transfer or similar taxes or duties, if any. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date; provided that if the Company elects to pay cash in lieu of shares of Common Stock under the circumstances set forth in Section 13.12, the Company shall pay such consideration on the third Business Day immediately following the last Trading Day of the Observation Period. If any ADSs shares of Common Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation, 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. If the Company elects to pay cash in lieu of shares of Common Stock under the circumstances set forth in Section 13.12, the Company shall make such cash payment by check mailed to the applicable converting Holder at its address as it appears in the Note Register; provided that in the case of a Holder of a beneficial interest in any Global Note, such payment shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, Note. Except in 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. Notwithstanding the foregoing, if case of Notes that are converted after the close of business on a Regular Record Date and for the payment of interest, but prior to the open of business on the corresponding Interest Payment Date, Holders a Holder of such Notes as of the close of business on such Regular Record Date will that are converted shall receive the full amount of interest payable a separate cash payment for accrued and unpaid interest, if any, on such Notes to, but not including, the Conversion Date. Any such payment will be made 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 settlement date applicable to the open of business relevant conversion on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfiedNotes.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion DateDate or, if the Company elects to pay cash in lieu of shares of Common Stock under the circumstances set forth in Section 13.12, the last Trading Day of the relevant Observation Period, 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.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for on the relevant Conversion Date; provided that if the Company elects to pay cash in lieu of shares of Common Stock under the circumstances set forth in Section 13.12, such payment shall be based on the Daily VWAP on the last Trading Day of the relevant Observation Period.
(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 the Limitation. The Limitation shall no longer apply following the effective date of any Fundamental Change.
Appears in 1 contract
Samples: Indenture (Kohlberg Capital CORP)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately after the close of business on the Conversion Date for such conversion, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second Business Day immediately following the relevant such Conversion Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, in addition to any certificates that may be required to be delivered pursuant to Section 13.12, 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)Date. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 XIII on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates (or, if the Note to be converted is a Global Note, a book-entry transfer through the Depositary) for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Clovis Oncology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateRate as of the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second fifth Business Day immediately following the relevant Conversion Date.
(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 Euroclear and Clearstream in effect at that time for book-entry transfer to the Conversion Agent through the facilities of the Depositary and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if requiredrequired by the Conversion Agent, furnish appropriate endorsements and transfer documents documents, and ADS delivery instructions and applicable fees if required by the ADS Depositary, (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) if required, pay any tax or duty, in accordance with Section 14.02(e), which may be payable in respect of any transfer involving the issue or delivery of the ADSs in the name of a person other than the Holder of such Note. The Trustee (and if different, the Conversion Agent) shall shall, within two (2) Business Days of receiving the Notice of Conversion, and in any event no later than the Conversion Date, notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents or the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause the ADS Depositary to be issuedissue, and deliver (if applicable) deliver, or cause the ADS Depositary to deliver, to such Holder, or such Holder’s nominee or nominees, the ADSs in the form of a certificate for the number of whole ADSs issuable upon the conversion or, in the case of Global Notes, in accordance with customary practices of the Depositary, a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute 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 Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any the ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay ADS Depositary may refuse to deliver the ADS Depositarycertificates representing the ADSs being issued in a name other than the Holder’s fees for name until the issuance of Holder pays to the ADSsrelevant tax authorities 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 ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the TrusteeRegistrar, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate additional cash payment for or additional ADSs representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business 3:00 p.m., London time 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 3:00 p.m., London time on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business 3:00 p.m., London time on any Regular Record Date to the open of business 9:00 a.m., London time on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes converted after 3:00 p.m., London time on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and before 3:00 p.m., London time on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment preceding the Maturity Date); (32) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Any conversion of Notes shall be deemed to have been effected on the Conversion Date for such Notes, and the Person in whose name the certificate for any ADSs delivered upon such conversion is registered shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such ADSs as of the close of business 3:00 p.m., London time on the relevant such Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue deliver any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
(k) In accordance with the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the ADSs upon conversion of the Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for such ADSs, shall deliver such legal opinions and any other information or documentation and shall comply with the Unrestricted Deposit Agreement and the Restricted Deposit Agreement (as the case may be), in each case, as required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 9.02, Section 9.03(b) and Section 9.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount Principal Amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 9.02, and a Qualifying Fundamental Change Payment, if applicable, on the second Business Day immediately following the relevant Conversion DateDate (or such longer period as the Applicable Procedures of the Depositary may require, with respect to any conversions by Beneficial Owners of interests in a Global Note).
(b) Subject to Section 14.02(e9.02(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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h9.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver a duly completed an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) 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 of Conversion”) in the form set forth in Attachment 1 to the Form of Note attached hereto as Exhibit A, at the office of the Conversion Agent and state in writing therein the principal amount 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 ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Qualifying Fundamental Change Payment, if applicable) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)9.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 9 on the Conversion Date, or promptly following instructions Date for such conversion. The exercise of such conversion rights shall be irrevocable. No Notice of Conversion with respect to any Holder may surrender Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof conversion if such Holder has also delivered (a) a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0310.02, or (b) a Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice in accordance with Section 3.08. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Qualifying Fundamental Change Payment, if applicable, with respect to such Notes shall be computed on the basis of the aggregate principal amount 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to its transfer agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion ObligationObligation together with any Qualifying Fundamental Change Payment, if applicable.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount Principal Amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Company shall conversion of such a Holder’s Note may be delayed if the Trustee, and the Conversion Agent does not, receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any ADSs 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 ADS Note Custodian (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 Principal Amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and Date, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must shall be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so 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 DateStated Maturity; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (orDate, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)in respect of Notes converted; or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Stated Maturity and any Fundamental Change Repurchase Date described in clause (if 2) above shall receive the full interest payment due on the Stated Maturity or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date. 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 Conversion Obligation due upon conversion and the Qualifying Fundamental Change Payment, if applicable, and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(k) The Company shall not effect any conversion of a Note, and no Holder shall have the right to convert any portion of such Note, to the extent that after giving effect to such conversion, such Holder (together with such Holder’s affiliates) would Beneficially Own in excess of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to such conversion (the “Conversion Limitation”). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its affiliates shall include the number of shares of Common Stock issuable upon conversion of a Note with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted portion of any Note beneficially owned by such Holder or any of its affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of this Section 9.02(k), in determining the number of outstanding shares of Common Stock, such Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent annual, quarterly or current report on Form 10-K, Form 10-Q or Form 8-K, respectively, as the case may be; (y) a more recent public announcement by the Company or (z) any other notice by the Company setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written or oral request of a Holder, the Company shall within two Business Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including any Note, by such Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, any Holder may increase or decrease the Conversion Limitation to any other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be effective until the 61st day after such notice is delivered to the Company, and (ii) any such increase or decrease will apply only to the Holder sending such notice and not to any other Holder of Notes. Notwithstanding the foregoing, the Conversion Limitation shall not be applicable (i) on any of the ten Trading Days up to and including the Stated Maturity, or (ii) on any of the ten Trading Days up to and including the Effective Date of such Fundamental Change or (iii) during the period between the date that the Fundamental Change notice is sent and the Fundamental Change Repurchase Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Akoustis Technologies, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.07(a) and Section 14.14(b), upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting HolderHolder no later than two (2) Business Days following the applicable conversion of the Notes, in respect of each US$$1,000 principal amount of Notes being converted, a number shares of ADSs equal to the Conversion RateCommon Stock, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) as set forth in this Section 14.02. The Company shall use the Physical Settlement Method for all conversions. The shares of Common Stock and cash the Company shall pay and/or deliver, as the case may be, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows 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 second Business Day immediately following the relevant Conversion DateDate (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change an Asset Sale Offer Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Asset Sale Offer Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Notwithstanding anything to the contrary contained herein, to the extent that an indirect holder of a Global Note held indirectly through a participant submits irrevocable instructions to convert any portion of such Note, such Holder shall be deemed for purposes of Regulation SHO to have converted the applicable portion of such Note at the time of delivery of such instructions, regardless of when shares of Common Stock are delivered to such Holder or its participant. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bii) above. Except as set forth in Section 14.07(a) and Section 14.14(b), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. 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 ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (if 2) above shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (UpHealth, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 book-entry transfer to the Conversion Agent through the facilities of the Depositary and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents)blank, at the office of the Conversion Agent, (3) if requiredrequired by the Conversion Agent, furnish appropriate endorsements and transfer documents documents, and, if required by the ADS Depositary, ADS delivery instructions and applicable fees, (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) if required, pay any tax or duty which may be payable in respect of any transfer involving the issue or delivery of the ADSs in the name of a Person other than such Holder. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Hxxxxx has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any the ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall ADS Depositary may refuse to deliver the certificates representing the ADSs being issued in a name other than the Holder’s name until the Trustee or Paying Agent, as the case may be, receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for or any Additional ADSs accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes converted after the close of business on the Regular Record Date immediately preceding the Maturity Date and before the close of business on the third Business Day immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder become the holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue deliver any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Common Shares), unless the tax is due because the Holder requests such ADSs (or the such Class A Ordinary Common 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 ADSs (or the Class A Common 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 Xxxxxx in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for or additional ADSs representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and any accrued and unpaid interest, if any, interest to, but not including, the relevant Conversion Date. As a result, any accrued and unpaid interest, if any, interest to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity DateDate or October 15, 2016; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding 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 corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (NQ Mobile Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 8.02, and Sections 8.03(b) and 8.07(a), upon conversion of any Notethe Notes, the Company shall will deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second third Business Day immediately following the relevant Conversion Date, a number of Shares (subject to Section 8.02(j)) equal to the product of (i) the aggregate principal amount of Notes to be converted, divided by $1,000, and (ii) the applicable Conversion Rate. Each conversion will be deemed to have been effected as to any Notes surrendered for conversion at the close of business on the Conversion Date.
(b) Subject to Section 14.02(e8.02(c), 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(h8.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and 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(h8.02(h) and (5) pay any required taxes pursuant to Section 8.02(d). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 8 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.039.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Any Note shall be deemed to have been converted immediately prior to as of the close of business on the date (the “Conversion Date”) that on which the Holder has complied with of such Note satisfies all of the applicable requirements set forth in subsection (b) aboveabove with respect to such Note and on which conversion of such Note is not otherwise prohibited under the Indenture shall be the Conversion Date with respect to such Note (the “Conversion Date”). If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, 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 ADSs Shares to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the The Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on upon conversion other than any tax that may be payable relating to any transfer involved in the issuance or delivery of any ADSs Shares, if any, due upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than that of the converting Holder, which such taxes shall be the obligation of the Holder’s name. Certificates representing Shares shall be issued and delivered only after all applicable transfer or similar taxes, in which case if any, payable by the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSshave been paid in full.
(f) Except as provided in Section 14.048.04, no adjustment shall be made for dividends on any ADSs issued Shares delivered upon the conversion of any Note as provided in this Article 148.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date but prior to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable Shares delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Notwithstanding the foregoing, the Company shall not issue deliver any fractional ADSs Shares upon conversion of the Notes and instead shall instead pay deliver cash in lieu of delivering any fractional ADS issuable upon conversion Shares based on the Daily VWAP for Last Reported Sale Price of the relevant Shares on the Conversion Date.
Appears in 1 contract
Samples: First Supplemental Indenture (New York Mortgage Trust Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate (or Warrants if required by Section 9.12), together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 9.02 and together with delivery of Warrants pursuant to Section 9.12, if applicable, in each case on the second third Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e9.02(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent Company as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent Company’s Office and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates (or book-entry deposits) for any ADSs the shares of Common Stock or Warrants to be delivered upon settlement of the Conversion Obligation to be registered, and (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Specified Date Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Specified Date Repurchase Notice, as the case may be, Notice in accordance with Section 15.0310.10. 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. If any ADSs are due Subject to a converting HolderSection 9.12, the Company shall issue or cause to be issued, and deliver (if applicable) to the Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Transfer Agent for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock or Warrants upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall may refuse to deliver the certificates (or book-entry deposits) representing the shares of Common Stock or Warrants being issued in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee[Reserved].
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued 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. Notwithstanding by the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business Company on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record relevant Conversion Date to the open of business Holder converting its Notes on such Conversion Date (unless the immediately following Interest Payment Conversion Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is falls after a Regular Interest Record Date and but on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (orDate, if in which case interest accrued will be paid on such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding to Holders of record of such Notes on such Regular Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent converting Holder (if other than the Trusteesuch record holder) will have not be entitled to any duty to determine or verify determination by separate cash payment for any accrued but unpaid interest on the Company of whether any of the conditions to conversion have been satisfiedConversion Date).
(i) The Person in whose name any ADSs shall be issuable the certificate for the shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of NotesNotes (whether settled in Common Stock or Warrants), such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Senior Note Purchase Agreement (Seacor Holdings Inc /New/)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. New York time at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. New York time on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, Trustee or the ADS Custodian at the direction of the Trustee, Note Registrar shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs “Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the applicable Observation Period for such Note. The Daily Settlement Amounts and the Daily Conversion RateValues shall be determined by the Company promptly following the last VWAP Trading Day of the Observation Period. Promptly after such determination, together with a cash payment, the Company shall notify the Trustee and the Conversion Agent (if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (jother than the Trustee) of this Section 14.02 on such amount. The Trustee and the second Business Day immediately following Conversion Agent (if other than the relevant Conversion DateTrustee) shall have no responsibility for such determination.
(b) Subject In order to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such a 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 pay any tax owed pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Class A Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and pay any tax owed pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) aboveSection 14.02(b). If any ADSs shares of Class A Common Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Class A Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation, subject to the Company’s right to pay cash in lieu of all or a portion of such shares as pursuant to Section 14.02(k).
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs upon conversion shares of the Notes or the issuance of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee and Depositary shall make a notation on such Global Note as to reflect the reduction in the principal amount represented therebythereby on their books and records. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement delivery of the full Conversion Obligation Settlement Amount 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, accrued and unpaid interest 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 immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on such Interest Payment Date on the Notes so converted (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive and retain the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion have been satisfiedtheir Notes are converted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shares of Class A Common Stock delivered upon conversion is registered (or with respect to which book-entry transfer through the Depositary shall be issuable upon conversion effected) shall be treated as a stockholder of record as of the close of business on the last VWAP Trading Day of the relevant Conversion DateObservation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS shares of Class A Common Stock issuable upon conversion based on the Daily VWAP on the Last VWAP Trading Day of the applicable Observation Period. For each Note surrendered for conversion, the full number of shares that shall be issued upon conversion thereof (subject to the Company’s right to pay cash in lieu of all or a portion of such shares pursuant to subsection (k) of this Section 14.02) 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) The Company may elect to settle all or a portion of the Daily Share Amount in cash. To make such election with respect to a Conversion Date, the Company must deliver to each converting Holder, the Trustee and the Conversion Agent (if other than the Trustee), a written notice specifying the Cash Percentage (such notice, the “Cash Percentage Notice”). The Company shall deliver the Cash Percentage Notice no later than the close of business on the Business Day immediately following such Conversion Date; provided, however, that the Company shall deliver the Cash Percentage Notice no later than the close of business on the Business Day immediately preceding March 15, 2018 to all Holders, the Trustee and the Conversion Agent (if other than the Trustee) with respect to all conversions occurring on or after March 15, 2018. If the Company timely specifies a Cash Percentage for a Conversion Date, the Company shall deliver to each converting Holder the Daily Net Cash Portion and a number of shares of Class A Common Stock, if any, equal to a percentage of the Daily Share Amount equal to 100% minus the Cash Percentage. If the Company fails to timely specify a Cash Percentage for a Conversion Date, the Company shall no longer have the right to specify a Cash Percentage with respect to the applicable conversion and shall settle the Daily Share Amount for each VWAP Trading Day in the applicable Observation Period in shares of Class A Common Stock, if any.
Appears in 1 contract
Samples: Indenture (FXCM Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02 (including subsection (k) of this Section 14.02), Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, subject to Section 14.02(k), and the Interest Make-Whole Payment, if applicable, on the second Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF .PDF attachment or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.02(d) and 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 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if applicable, 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. If any ADSs are due Subject to a converting HolderSection 14.02(k), the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation together with any cash or shares of Common Stock issuable in respect of any Interest Make-Whole Payment applicable to the conversion of such Note purusant to Section 14.01(b).
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock (and/or Warrants, if applicable) upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs shares (or the Class A Ordinary Sharesand/or Warrants, if applicable) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall may refuse to deliver the certificates representing the shares of Common Stock (and/or Warrants, if applicable) 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.01(b), upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation (and any applicable Interest Make-Whole Payment) 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; (2) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent ; or (5) if other than the Trustee) will have any duty to determine or verify determination by the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date. 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 (3) of the immediately preceding sentence and Redemption Date described in clause (5) of the immediately preceding sentence and Holders entitled to an Interest Make-Whole Payment upon conversion shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock (and, if applicable, Warrants) shall be issuable upon conversion shall be treated as a stockholder (and, if applicable, holder of Warrants) of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date and, with respect to an Interest Make-Whole Payment satisfied in whole or in part with shares of Common Stock, based on the simple average of the Daily VWAP of the Common Stock for the ten Trading Days immediately preceding the Conversion Date.
(k) Notwithstanding anything to the contrary in this Indenture or the Notes, until the Company has obtained Stockholder Approval, if the aggregate number of shares of Common Stock issued in respect of all conversions of Notes (including related Interest Make-Whole Payments) with Conversion Dates prior to the Company obtaining Stockholder Approval exceeds (or will exceed after giving effect to such conversion (including any related Interest Make-Whole Payments the Company elects to pay for in shares of its Common Stock in accordance with Section 14.01(b)) the Aggregate Share Cap, the Company will deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted (or the portion thereof that would result in the Company issuing shares of Common Stock in excess of the Aggregate Share Cap) Warrants that, subject to Stockholder Approval, shall be exercisable on a cashless exercise basis into the number of shares of Common Stock that would otherwise be deliverable in respect of the conversion of such Notes (including any related Interest Make-Whole Payment the Company elects to pay for in shares of its Common Stock in accordance with Section 14.01(b)). Any such Warrants delivered pursuant to this Section 14.02(k) shall be deemed to have been sold to the converting Holder on the pricing date of the 5.50% Notes Exchange; provided that for purposes of complying with the delivery obligation described in this Section 14.02(k), the Company will take into account the specific time in respect of which a Conversion Date occurs. Notwithstanding anything to the contrary in Section 14.02(a), if the Company is required to deliver Warrants in respect of a Conversion Obligation or Interest Make-Whole Payment pursuant to this Section 14.02(k), the Company shall deliver such Warrants to the converting Holder as soon as reasonably practicable after the Conversion Date; provided that, for the avoidance of doubt, the Person in whose name any such Warrants shall be issuable upon conversion of Notes shall be treated as the holder of record in respect of such Warrants as of the close of business on the relevant Conversion Date and will therefore be subject to and have the benefits of the provisions of the Warrants at such time; provided further that if the Company obtains Stockholder Approval before delivering any Warrants due pursuant to this Section 14.02(k), the Company shall instead deliver the number of shares of Common Stock that it would have been obligated to deliver such Person if not for this Section 14.02(k).
(l) Within three Trading Days of any conversion of Notes with a Conversion Date that occurs prior to the date of Stockholder Approval, the Company shall notify the Holders of such conversion, which notice shall include the number of shares that remain available under the Aggregate Share Cap after giving effect to the conversion prompting such notice.
Appears in 1 contract
Samples: Indenture (Egalet Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 14.13, upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$1,000 principal amount the Original Principal Amount of Notes being converted, a number of ADSs Ordinary Shares equal to the quotient obtained by dividing (x) the Then Current Principal Amount of such Note by (y) the Conversion RatePrice in effect on the Conversion Date, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs Ordinary Share in accordance with subsection (j) of Section 14.02(k), and the Interest Make-Whole Payment, if applicable, as set forth in this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount Original 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 ADSs Ordinary Shares to be delivered upon settlement of the Conversion Obligation (and any Interest Make-Whole Payment) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and or if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, delivered by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company an election to have any Notes purchased pursuant to any Asset Sale Offer, Fundamental Change Offer or Springing Repurchase Offer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice election in accordance with Section 15.03(b) or Repurchase NoticeSection 15.05, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if applicable, with respect to such Notes shall be computed on the basis of the aggregate principal amount Original 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 (bSection 14.02(b). Except as set forth in Section 14.03(b) aboveand Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation and the Interest Make-Whole Payment on the second Trading Day immediately following the relevant Conversion Date. If any ADSs Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Noteif such facilities are then available), in satisfaction of the Company’s Conversion Obligation.
, which, on or after the earlier of (di) In case the six month anniversary of the Issue Date or any certificated Note later date of original issue of Notes in accordance with the provisions of the Repurchase and Subscription Agreement, or (ii) the Effective Date, shall be surrendered free of restrictive legends and trading restrictions, notwithstanding the provision of Section 2.05(d) hereof. In the event Ordinary Shares are being delivered in accordance with the provisions of the preceding paragraph as first being issued without a restrictive legend in reliance on any Holder’s intention to resell such Ordinary Shares in reliance on Rule 144, such Holder shall, at the time of delivery of the related conversion notice, represent to the Company and its counsel that (i) it intends to sell such Ordinary Shares prior to the filing date of the Company’s next periodic report and (ii) if such Ordinary Shares are not sold by such filing date and such Ordinary Shares are no longer eligible for partial conversionresale under Rule 144, such Holder will deliver such shares (including as applicable by book-entry transfer through the facilities of DTC) to the Transfer Agent or to the Company to have the restrictive legend placed back on such certificates representing such Ordinary Shares (and in the case of any Warrant Shares delivered through the facilities of DTC, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes issue physical certificates in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered exchange for such conversionOrdinary Shares so delivered).
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a This 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall will be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered (1) a duly completed and executed irrevocable written notice to the requirements set forth Registrar in subsection the form attached hereto as Exhibit A (bthe “Conversion Notice”), (2) abovethe certificate evidencing this Note (the “Note Certificate”) to the Registrar for cancellation or notation of the outstanding principal amount of this Note after partial conversion, and (3) the ADS conversion documents pursuant to the procedures of the Depositary in effect at that time to the Registrar and the Depositary. If any ADSs are due On or before the third (3rd) Business Day following the date of receipt of a Conversion Notice, the Registrar will transmit by facsimile or other electronic means a confirmation of receipt of such Conversion Notice to a converting Holderthe Holder (the “Receipt Confirmation” and such date of transmission, the “Receipt Confirmation Date”). Within five (5) Business Days after the relevant Receipt Confirmation Date, the Company shall issue or cause will (i) take all actions and execute all documents and procure that the Depositary take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the full issuance of the number of ADSs to which such the Holder shall will be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Sections 3.1, (ii) cause entries on the Company’s register of members to be entered with respect to the Ordinary Shares represented by such ADSs in the name of the Depositary for the purpose of such deposit and (iii) subject to Section 3.6(c), cancel this Note Certificate. No Conversion ObligationNotice may be delivered and this Note Certificate may not be surrendered by the Holder for conversion thereof if the Holder has also delivered a Relevant Event Put Exercise Notice to the Registrar in respect of this Note and not validly withdrawn such Relevant Event Put Exercise Notice in accordance with Section 5.3. A single certificate will be issued in respect of all ADSs issued on conversion of this Note subject of the same Conversion Notice.
(db) The Company will not issue any Fractional ADS upon conversion of this Note and will instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the VWAP of the ADSs on the relevant Conversion Date.
(c) In case any certificated the event the Holder presents this Note shall be surrendered Certificate to the Registrar pursuant to Section 3.6(a) for partial conversion, the Company shall execute and Registrar will record the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate outstanding principal amount equal to the unconverted portion of the surrendered Note, presented Note Certificate on the Register and the “Schedule of Outstanding Principal Amount of this Note in respect of which this Note Certificate is issued” attached to this Note Certificate and update the Register to reflect such outstanding principal amount. Such recoding will be made without payment of any service charge by the converting Holder.
(d) If the Holder butsubmits this Note Certificate to the Registrar for conversion, if required by the Company or Trustee, with payment of a sum sufficient to cover will pay any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any the ADSs upon such conversion of the Notes this Note (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall will pay that tax. The Company shall will pay the ADS relevant Depositary’s fees for the issuance of the ADSs.
(fe) Except as provided in Section 14.04, no adjustment shall The number of ADSs to be made for dividends issued on any ADSs issued upon the conversion of any a Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in will be determined by dividing the principal amount represented thereby. The Company of Note to be converted by the Conversion Price (in the event of Fractional ADS, cash in lieu of such Fractional ADS shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbe paid pursuant to Section 3.6(b)). The Company’s settlement of the full Conversion Obligation shall each conversion pursuant to this Article 3 will be deemed to satisfy in full its obligation to pay the principal amount of this Note converted.
(f) If the Note and accrued and unpaid interest, if any, torecord date for the payment of any dividend or other distribution in respect of the Original Shares is on or after the Conversion Date in respect of this Note, but not includingbefore the issuance of the ADS to the Holder, the relevant Conversion Date. As a result, accrued Company will calculate 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior directly pay to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by converting Holder an amount in U.S. dollars (the “Equivalent Amount”) equal to the amount Fair Market Value of interest payable such dividend or other distribution to which the Holder would have been entitled had the Depositary on the Notes so converted (regardless of whether the converting Holder was the holder that record date been such a shareholder of record on of Original Shares and will make the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the same time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any as it makes payment of the conditions to conversion have been satisfieddividend or other distribution, or as soon as practicable thereafter, but, in any event, not later than seven (7) Business Days thereafter.
(ig) The Person Except as provided in whose name Section 3.6(f), no adjustment will be made for dividends on any ADSs shall be issuable delivered upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this Article 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (NaaS Technology Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any ADSs (“Fractional ADSs”) that would represent a fractional ordinary share (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ordinary share) in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Xxxxxx in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Any Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of whole ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Sharesordinary shares), unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Sharessuch ordinary shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the ordinary shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has delivered a Tax Redemption Notice pursuant to Article 16 and has specified therein a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) Maturity Date will have any duty to determine or verify determination by receive the Company full amount of interest payable on such Notes on the Maturity Date, regardless of whether any of the conditions to conversion such Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Trina Solar LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(b), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company (bthe “Conversion Notice”) and the Note for cancellation to the Company. Within three (3) Business Days after the delivery of the Note and the Conversion Notice to the Company pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Class A Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) deliver to the Holder certificate(s) representing the number of Class A Shares delivered upon each such conversion, (iii) deliver to the Holder a certified copy of the register of members of the Company, reflecting the Holder’s ownership of the Class A Shares delivered upon each such conversion and (iv) subject to Section 3.3(b), cancel the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Article 5.
(db) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, 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 note denominated in authorized denominations U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ec) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs the Class A Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant fees for issuance of the Class A Shares and shall pay the relevant depositary’s fees for any future conversion of the issuance of issued Class A Shares into the ADSs.
(fd) Except as provided in Section 14.044.2, no adjustment shall be made for dividends on any ADSs issued Class A Shares delivered upon the any conversion of any this Note as provided in this Article 143.
(ge) Upon the conversion of an interest in a Global Noteany conversion, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this Article 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 Holder will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of Class A Shares upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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 the Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Holder in whose name the certificate for any ADSs shall be issuable Class A Shares delivered upon conversion is registered shall be treated as a stockholder holder of record of such Class A Shares as of the close of business on the relevant Conversion Date. Upon a conversion of Notesthe entire outstanding amount of the Note, such Person the Holder shall no longer be a Holder holder of such Notes the Note surrendered for conversion.
(jg) The Company shall not issue any fractional ADSs Class A Share upon conversion of the Notes Note and shall instead pay cash in lieu of delivering any fractional ADS issuable Class A Share deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Class A Shares on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.01(b), Section 14.03, Section 14.04 and Section 14.08(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs shares of Common Stock equal to the Conversion RateRate (as adjusted for any Additional Shares as a result of a Voluntary Conversion Increase, if any), together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 provide an irrevocable notice (a “Notice of Conversion”) by (i) in the case of a Global Note, comply complying with the procedures of the Depositary in effect at that time and, if required, pay (1) paying 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 (2) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (ii) in the case of a Physical Note (1) completecompleting, manually sign signing and deliver a duly completed delivering the irrevocable written notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state stating 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 ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish furnishing appropriate endorsements and transfer documents and documents, (4) if required, pay paying 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 (5) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company Company, the Trustee or Trusteethe 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 Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent close of business on the Regular Record Date immediately preceding the Maturity Date, any Redemption Date described in clause (if 2) of the immediately preceding sentence and any Fundamental Change Repurchase Date described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Second Supplemental Indenture (Rocket Pharmaceuticals, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Except as provided in Section 11.07(a) hereof, upon conversion of any Note, the Company shall deliver to the converting Holder, in respect Holder a number of each US$1,000 shares of Common Stock equal to the product of (A)(x) the aggregate principal amount of Notes such Note that is being converted, a number of ADSs equal to divided by (y) $1,000 and (B) the Conversion RateRate in effect on the applicable Conversion Date; provided, together with a however, that the Company will pay an amount of cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock determined in accordance with subsection (jSection 11.02(j) hereof. The Company will deliver such shares of this Section 14.02 Common Stock, and pay any amount of cash in lieu of any fractional share of Common Stock, on the second third Business Day immediately following the relevant applicable Conversion Date.
(b) Subject to Section 14.02(e)11.02(e) hereof, 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 (ii) in the case of a Physical Definitive Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion as Exhibit G hereto (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, and (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 11 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close Close of business Business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee Trustee, upon receipt of an Authentication Order if required in connection with the issuance of new Notes, shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or 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 Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0411.03 hereof, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 1411.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interestof, premium, if any, to, and any and all interest (but not including, excluding any Interest Make-Whole Premium) on the relevant Conversion DateNote that is converted. 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. Notwithstanding the foregoing, if If Notes are converted after the close Close of business Business on a Regular Record Date and prior to but before the open of business on the corresponding related Interest Payment Date, if permitted by the Depositary the Holders of such Notes as of the close Close of business Business on such Regular Record Date will receive no money or property representing 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 an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close Close of business Business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs shares of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP Conversion Rate then in effect. For each Note surrendered for conversion, the relevant full number of shares of Common Stock that shall be issued upon conversion thereof shall be computed on the basis of the Conversion DateRate then in effect, and any fractional shares of Common Stock remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (ZaZa Energy Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs (“Fractional ADSs”) (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ADS) in accordance with subsection (j) of this Section 14.02 14.02, on the second Business Day immediately following the relevant Conversion Date. For the avoidance of doubt, neither the Trustee nor any Agent shall have any responsibility to deliver ADSs upon conversion of any Note to any person or deal with cash payments in relation to conversions.
(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 and the Restricted Issuance Agreement or Unrestricted Deposit Agreement, as applicable, in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) ), and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. A Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) or cause to be delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs. The Company shall also pay and/or indemnify each Holder and beneficial owners of the Notes and/or ADSs issuable upon conversion of the Notes for applicable fees and expenses payable to, or withheld by, the Depositary (including, for the avoidance of doubt, by means of a reduction in any amounts or property payable or deliverable in respect of any ADSs or in the value of deposited amounts or property represented by any ADSs) for the issuance of all ADSs deliverable upon conversion (including, with respect to any ADSs subject to a restricted CUSIP and/or restrictive legends upon issuance, any of the foregoing with respect to the removal of any such restrictions from such ADSs).
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second third Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the third Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record as of the Conversion Agent (if other than close of business on the Trustee) will have any duty to determine or verify determination by Regular Record Date immediately preceding the Company Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion DateDate (or if such Conversion Date is not a Trading Day, the immediately preceding Trading Day).
(k) In accordance with the Unrestricted Deposit Agreement or the Restricted Issuance Agreement, as applicable, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the ADSs upon conversion of the Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for such ADSs, shall deliver such legal opinions and any other information or documentation and shall comply with the Unrestricted Deposit Agreement and the Restricted Issuance Agreement (as the case may be), in each case, as required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Samples: Indenture (Baozun Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver deliver, on the second Scheduled Trading Day following the Conversion Date to the converting Holder, in respect Holder a number of each US$1,000 shares of Common Stock equal to (i)(A) the aggregate principal amount of Notes being to be converted, a number of ADSs equal to divided by (B) $1,000, multiplied by (ii) the applicable Conversion Rate in effect on the Conversion RateDate; provided, together with a cash paymenthowever, if applicable, in lieu that for any conversion that occurs on or after the Record Date for the payment of delivering any fractional ADSs in accordance with subsection (j) interest on the Notes at the Maturity Date and until the close of this Section 14.02 business on the second Business Scheduled Trading Day immediately following preceding the relevant Conversion Maturity Date, the Company will deliver such shares on the Maturity Date.
(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 payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and/or all transfer or similar taxes described herein, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h); and (5) if required, pay any transfer or similar taxes as described herein. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on as soon as practical, but in any event, not later than the Trading Day immediately following the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. If any ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, The Conversion Agent may refuse to deliver the Company shall pay any documentary, stamp, issue, transfer or similar tax due on certificates representing the delivery shares of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be Common Stock being issued in a name other than the Holder’s name, name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in which case accordance with the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest on the Notes. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions of the Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if for conversions of Notes for which the Company has specified given a Redemption Company Conversion Notice with a Company Conversion Date that is after a Regular Record Date and on or prior to the second Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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 NoteNotes. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if Regular Record Date immediately preceding the Maturity Date, Company Repurchase Notice Date or any Fundamental Change Repurchase Date, in each case described above, shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Notwithstanding the foregoing, the Company shall not issue deliver any fractional ADSs share of Common Stock upon conversion of the Notes and Notes; the Company shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion DateDate (or, if such Conversion Date is not a Trading Day, the next following Trading Day).
Appears in 1 contract
Samples: Indenture (Fluidigm Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(b), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company (bthe “Conversion Notice”) and the Note for cancellation to the Company. Within three (3) Business Days after the delivery of the Note and the Conversion Notice to the Company pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Class A Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) deliver to the Holder certificate(s) representing the number of Class A Shares delivered upon each such conversion, (iii) deliver to the Holder a certified copy of the register of members of the Company, reflecting the Holder’s ownership of the Class A Shares delivered upon each such conversion and (iv) subject to Section 3.3(b), cancel the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Article 5.
(db) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, 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 note denominated in authorized denominations U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ec) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs the Class A Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant fees for issuance of the Class A Shares and shall pay the relevant depositary’s fees for any future conversion of the issuance of issued Class A Shares into the ADSs.
(fd) Except as provided in Section 14.044.2, no adjustment shall be made for dividends on any ADSs issued Class A Shares delivered upon the any conversion of any this Note as provided in this Article 143.
(ge) Upon the conversion of an interest in a Global Noteany conversion, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this Article 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 Holder will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of Class A Shares upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Holder in whose name the certificate for any ADSs shall be issuable Class A Shares delivered upon conversion is registered shall be treated as a stockholder holder of record of such Class A Shares as of the close of business on the relevant Conversion Date. Upon a conversion of Notesthe entire outstanding amount of the Note, such Person the Holder shall no longer be a Holder holder of such Notes the Note surrendered for conversion.
(jg) The Company shall not issue any fractional ADSs Class A Share upon conversion of the Notes Note and shall instead pay cash in lieu of delivering any fractional ADS issuable Class A Share deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Class A Shares on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 14.13, upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (jSection 14.02(l) of as set forth in this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02.
(b) Subject to Section 14.02(e14.02(f), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i) and (ii) in the case of a Physical an Uncertificated Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF facsimile or other electronic transmission email thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, which shares shall be issued as indicated in the Notice of Conversion, (2) if required, furnish appropriate endorsements and transfer documents and (3) 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(i), and (iii) 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 email thereof) (a “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 shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, which shares shall be issued as indicated in the Notice of Conversion, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(i). The Trustee (and or if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, delivered by a Holder thereof if such Holder has also delivered to the Company a Fundamental Change Year 3 Repurchase Notice, a Year 5 Repurchase Notice or Repurchase Notice an election to the Company have any Notes purchased pursuant to any Change of Control Offer in respect of such Notes and has not validly withdrawn such Fundamental Change Year 3 Repurchase Notice, a Year 5 Repurchase Notice or Repurchase Notice, as the case may be, election in accordance with Section 15.0315.02 or Section 15.05. 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 (bSection 14.02(b). Except as set forth in Section 14.03(b) aboveand Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation and the Interest Make-Whole Payment on the second Business Day immediately following the relevant Conversion Date. If any ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Noteif such facilities are then available), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.02(j) and except as set forth below, upon any conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, . Subject to Section 14.02(j) and except as set forth below. The , the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will 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 Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Mandatory Conversion Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change of Control Repurchase Date that is after a Regular an Interest Record Date and on or prior to the Business Day immediately succeeding following the date on which the corresponding Interest Payment Date interest payment is made; (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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; or (4) for any conversion of Notes as to which an Interest Make-Whole Payment is payable (or Section 14.02(j) is otherwise applicable). Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Interest Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Interest Record Date.
(i) Upon any conversion, other than a conversion in connection with a Make-Whole Fundamental Change, the Company will, in addition to the other consideration payable or deliverable in connection with such conversion, make an interest make-whole payment to the converting Holder equal to the sum 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 Conversion Date through the earlier of (x) the second anniversary of the Conversion Date or (y) the Maturity Date (the “Interest Make-Whole Payment”); provided that if the applicable Conversion Date occurs after the close of business on an Interest Record Date but prior to the open of business on the Interest Payment Date corresponding to such Interest Record Date, the Company shall not pay accrued interest to any converting Holder and will instead pay the full amount of the relevant interest payment on such Interest Payment Date to the Holder of record on such Interest Record Date. In such case, the Interest Make-Whole Payment to such converting Holder will equal all remaining interest payments, starting with the next Interest Payment Date for which interest has not been provided for until the earlier of (x) the second anniversary of the Conversion Date or (y) the Maturity Date. The Company shall have sole responsibility for calculating the Interest Make-Whole Payment, which in the absence of manifest error shall be conclusive and binding on the Holder, and shall pay the Interest Make-Whole Payment either (A) in cash or, (B) if the Beneficial Ownership Limitations would not limit such payment, by delivery of shares of Common Stock freely tradable in the United States, with the value of each share of Common Stock so delivered equal to 95% of the simple average of the Daily VWAP for the 5 Trading Days ending on, and including, the Trading Day immediately preceding the Conversion Date, provided such price exceeds the greater of $0.60 per share or the minimum price permitted by the TSX-V (or such other principal Canadian stock exchange on which the shares of Common Stock may be listed). In the event a per-share value equal to 95% of the simple average of the Daily VWAP for the 5 Trading Days ending on and including, the Trading Day immediately preceding the Conversion Date is less than $0.60 per share or the minimum price permitted by the TSX-V, the Company shall pay the Interest Make-Whole Payment in cash. The Company shall notify the converting Holder of the Company’s election to pay any part of the Interest Make-Whole Payment in shares of Common Stock no later than the close of business on the Trading Day immediately following the relevant Conversion Date.
(j) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(jk) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes (including any shares of Common Stock to be issued in connection with an Interest Make-Whole Payment) and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date. Notwithstanding this Section 14.02(k) or anything herein to the contrary, if the dollar amount of the cash payment owing by the Company in lieu of a fractional entitlement to shares of Common Stock is less than $10.00, no such cash payment is required to be made.
(l) The certificates or other instruments representing shares of Common Stock delivered in satisfaction of any Interest Make-Whole Payment shall be issued without any restrictive legend under Applicable Securities Legislation and shall be unrestricted shares that are freely tradable by Holders other than the Company’s Affiliates (or Holders that were not the Company’s Affiliates at any time during the three immediately preceding months) pursuant to (i) applicable Canadian Securities Law and the rules of any stock exchange on which the securities of the Issuer may then be listed, and an effective registration statement that has been declared effective under the Securities Act with a current prospectus available for immediate sale.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, (1) a number of ADSs Ordinary Shares equal to the Conversion Rate, Rate in effect on the Conversion Date together with a cash payment(2) cash, if applicable, in lieu of delivering any fractional ADSs Ordinary Share in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02.
(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, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) 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 a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) thereof (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs Ordinary Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and 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) 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 Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion14. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0315.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date (provided that, with respect to any Conversion Date following the Regular Record Date immediately preceding the Maturity Date, the Company will settle any such Conversion on the Maturity Date). If any ADSs Ordinary Shares are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs Ordinary Shares to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs Ordinary Shares upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Conversion Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date, any Redemption Date and any Fundamental Change Repurchase Date described in clause (if 2) above shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the Ordinary Shares shall be issuable upon conversion shall be treated as a stockholder shareholder of record as of the close of business on the relevant Conversion Date, subject to applicable law. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Ordinary Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS Ordinary Share issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
(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 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 (Cazoo Group LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date, subject, in the case of any Physical Note that contains a Blocker Provision (as defined therein), to such Blocker Provision, which shall not in any case be waiveable by the Holder and, in case of a Physical Note or a Global Note, to the last sentence of Section 14.01.
(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 (it being understood that 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change of Control Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change of Control Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding date the corresponding Interest Payment Date (or, if such Interest Payment Date interest amount is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)paid; or (43) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date without an obligation to pay equivalent interest amounts.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, subject to Section 2.03(b), such Person shall no longer be a Holder of such Notes surrendered for conversion; provided that such Person shall have the right to receive the consideration due upon conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.03 and Section 14.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 on 14.02, by the second third Business Day immediately following the relevant Conversion Date.
(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 and to the extent set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall or 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent (if other than close of business on the Trustee) will have any duty to determine or verify determination by Regular Record Date immediately preceding the Company Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Dermira, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b), Section 14.07(a) and Section 14.13, upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (jSection 14.02(k) of as set forth in this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and or if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, delivered by a Holder thereof if such Holder has also delivered to the Company a Fundamental Change Year 4 Repurchase Notice or Repurchase Notice an election to the Company have any Notes purchased pursuant to any Change of Control Offer in respect of such Notes and has not validly withdrawn such Fundamental Change Year 4 Repurchase Notice or Repurchase Notice, as the case may be, election in accordance with Section 15.0315.02 or Section 15.05. 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 (bSection 14.02(b). Except as set forth in Section 14.03(b) aboveand Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation and the Interest Make-Whole Payment on the second Business Day immediately following the relevant Conversion Date. If any ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Noteif such facilities are then available), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.02(i) and except as set forth below, upon any conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, . Subject to Section 14.02(i) and except as set forth below. The , the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Interest Record Date will 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 Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Interest Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Mandatory Conversion Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change of Control Repurchase Date that is after a Regular an Interest Record Date and on or prior to the Business Day immediately succeeding following the date on which the corresponding Interest Payment Date interest payment is made; (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither the Trustee nor the Conversion Agent ; or (if other than the Trustee4) will have for any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionas to which an Interest Make-Whole Payment is payable (or Section 14.02(i) is otherwise applicable).
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second third Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the 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 ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding 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 corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if Regular Record Date immediately preceding the Maturity Date and any Redemption Date or Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs shall be issuable the certificate for the shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Clovis Oncology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall (i) deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, Holder a number of ADSs equal to the product of (x) the aggregate principal amount of Notes to be converted, divided by $1,000 and (y) the applicable Conversion Rate, together with Rate and (ii) make a cash payment, if applicable, payment to the converting Holder in lieu of delivering any fractional ADSs ADS in accordance with subsection (jk) of this Section 14.02 based on the second Business Day immediately following Last Reported Sale Price of the ADSs on the relevant Conversion DateDate (or, if such Conversion Date is not on a Trading Day, the immediately preceding Trading Day).
(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 for converting a beneficial interest in effect at that time a Global Note and, if required, pay funds equal to interest payable on the next corresponding Interest Payment Date to which such the Holder is not entitled as set forth in Section 14.02(h14.02(i) and, if required, pay all taxes or duties, if any, and provide an original signed notice of conversion with a medallion guaranty stamp on the back of the Note (a “Notice of Conversion”) and other appropriate clearing agency message and effect book-entry transfer or deliver the Notes, together with necessary endorsements and (ii) in the case of a Physical Note Notes (1) complete, complete and manually sign and the Notice of Conversion, or a facsimile of the Notice of Conversion; (2) deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of original Notice of Conversion (or with a facsimilemedallion guaranty stamp, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at which is irrevocable, and the office of Note to the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, ; (3) if requiredrequired by the Conversion Agent, 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 the Holder is not entitled as set forth in Section 14.02(h14.02(i). The Trustee (and and, if different, the Conversion Agent) ), shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by If a Holder thereof if such Holder has also already delivered a Fundamental Change Repurchase Right Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or a 2017 Repurchase Notice, as the case Holder may be, not surrender that Note for conversion until the Holder has withdrawn the related repurchase notice in accordance with Section 15.03this Indenture. If the Company has designated a Tax Redemption Date, a Holder that complies with the requirements for conversion described in this Article 14 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) aboveabove provided that such procedures must be complied with on or prior to 2:00 pm (New York time) on a Business Day in order for the conversion to be processed on the same day. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion ; provided, however, that if a Holder converts Notes and receives ADSs that constitute Restricted Securities, the Holder shall be required to pay the Depositary’s fees associated with the removal of any restrictive legends required by Section 2.05 from any ADS issuable upon conversion and any assignment of an unrestricted CUSIP number to any ADS issuable upon conversion. The Depositary’s fees for which such Xxxxxx would be responsible for as of the date of the Preliminary Offering Memorandum is 10 cents per ADS.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any the ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The ADS Depositary may refuse to deliver the certificates representing the ADSs being issued in a name other than the Holder’s name until the Trustee or Paying Agent, as the case may be, receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall will pay the ADS Depositary’s applicable fees and expenses of the Depository for the issuance of the ADSsall ADSs deliverable upon conversion.
(f) The Company shall, and shall procure that the ADS Depositary shall, at all times maintain, for the benefit of the Holders, a number of ADSs available for distribution under a registration statement on Form F-6 equal to at least the maximum number of ADSs potentially required to satisfy conversion of the Notes from time to time as Notes are presented for conversion (with such maximum number of ADSs determined with the maximum number of additional ADSs added to the conversion rate).
(g) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(gh) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(hi) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement delivery to Holders of the full Conversion Obligation ADSs, together with any cash payment for any fractional ADS, into which a Note is convertible, shall be deemed to satisfy in full its the Company’s obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, on the Note to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, on the Note to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if the Notes are converted after the close of business on a any Regular Record Date and prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such the Notes as of at the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required made (1) for conversions Notes converted following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date Date; (or, 3) if such Interest Payment the 2017 Repurchase Date is not after a Business Day, Regular Record Date and on or prior to the second Business Day immediately succeeding such following the corresponding Interest Payment Date); (4) if the Company has specified a Tax Redemption Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (45) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist, including any overdue interest, at the time of conversion with respect to such Note. Neither For the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (Regular Record Date immediately preceding the Maturity Date, the 2017 Repurchase Date, any Fundamental Change Repurchase Date and any Tax Redemption Date described in this Section 14.02 shall receive the full payment of interest, if any, due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion Notes have been satisfiedconverted following such Regular Record Date.
(ij) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder become the Holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(jk) The Company shall not issue deliver any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion DateDate or, if such Conversion Date is not on a Trading Day, the immediately preceding Trading Day.
Appears in 1 contract
Samples: Indenture (TAL Education Group)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company Corporation shall deliver to the converting HolderPurchaser, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (ji) of this Section 14.02 1.2, on the second Business Day business day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a Note Before the Purchaser shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global NotePurchaser shall, 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 (ii) in the case of a Physical Note Note, (1i) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent Corporation as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent Corporation and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder the Purchaser wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2ii) surrender such Notes, duly endorsed to the Company Corporation or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion AgentCorporation, (3iii) if required, furnish appropriate endorsements and transfer documents documents, and (4iv) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder the Purchaser is not entitled as set forth in Section 14.02(h1.2(g). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same HolderPurchaser, 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 Purchaser has complied with the requirements set forth in subsection (b) aboveSection 1.2(b). If any ADSs are due to a converting Holder, the Company The Corporation shall issue or cause to be issued, and deliver (if applicable) to such Holderthe Purchaser, or such Holderthe Purchaser’s nominee or nominees, certificates or a book-entry transfer through the Transfer Agent for the full number of ADSs shares of Common Stock to which such Holder the Purchaser shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation no later than one (1) business day following receipt of all material required in Section 1.2(b) above.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company Corporation shall execute and the Trustee shall execute, authenticate and deliver to or upon the written order of the Holder Purchaser 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 Purchaser but, if required by the Company or TrusteeCorporation, 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 conversiontherewith.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.041.3, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 14Section 1.
(gf) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Corporation shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(ig) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder the Purchaser of such Notes surrendered for conversion, except for purposes of enforcing its right to receive the consideration due upon conversion.
(jh) The Company Corporation shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(a) and Section 14.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number shares of ADSs equal to the Conversion RateCommon Stock, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date14.02(j).
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(h) and (ii) in the case of a Physical Certificated Note (1) complete, manually or electronically sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)) and (5) if required, pay all transfer or similar taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Asset Sale Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03notice. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall deliver the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. If any ADSs shares of Common Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow or, if applicable, pursuant to Section 14.12. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of such interest payable on the Notes so converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of Business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date, in respect of Notes converted after the close of business on such Regular Record Date (or, if such Interest Payment Date is not a Business Day, and prior to the third Business Day immediately succeeding open of business on such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date, in respect of Notes converted after the close of business on such Regular Record Date (or, if such Interest Payment Date is not a Business Day, and prior to the second Business Day immediately succeeding open of business on such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent close of business on the Regular Record Date immediately preceding the Maturity Date, Redemption Date and any Fundamental Change Repurchase Date described in subclauses (if 1), (2) and (3) above shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP Last Reported Sale Price for the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a This 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall will be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered (1) a duly completed and executed irrevocable written notice to the requirements set forth Registrar in subsection the form attached hereto as Exhibit A (bthe “Conversion Notice”), (2) abovethe certificate evidencing this Note (the “Note Certificate”) to the Registrar for cancellation or notation of the outstanding principal amount of this Note after partial conversion, and (3) the ADS conversion documents pursuant to the procedures of the Depositary in effect at that time to the Registrar and the Depositary. If any ADSs are due On or before the second Business Day following the date of receipt of a Conversion Notice, the Registrar will transmit by facsimile or other electronic means a confirmation of receipt of such Conversion Notice to a converting Holderthe Holder (the “Receipt Confirmation” and such date of transmission, the “Receipt Confirmation Date”). Within five Business Days after the relevant Receipt Confirmation Date, the Company shall issue or cause will (i) take all actions and execute all documents and procure that the Depositary take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the full issuance of the number of ADSs to which such the Holder shall will be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Sections 3.1 or 3.2, (ii) cause entries on the Company’s register of members to be entered with respect to the Ordinary Shares represented by such ADSs in the name of the Depositary for the purpose of such deposit and (iii) subject to Section 3.6(c), cancel this Note Certificate. No Conversion ObligationNotice may be delivered and this Note Certificate may not be surrendered by the Holder for conversion thereof if the Holder has also delivered a Relevant Event Put Exercise Notice to the Registrar in respect of this Note and not validly withdrawn such Relevant Event Put Exercise Notice in accordance with Section 5.3. A single certificate will be issued in respect of all ADSs issued on conversion of this Note subject of the same Conversion Notice.
(db) The Company will not issue any Fractional ADS upon conversion of this Note and will instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the VWAP of the ADSs on the relevant Conversion Date.
(c) In case any certificated the event the Holder presents this Note shall be surrendered Certificate to the Registrar pursuant to Section 3.6(a) for partial conversion, the Company shall execute and Registrar will record the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate outstanding principal amount equal to the unconverted portion of the surrendered Note, presented Note Certificate on the Register and the “Schedule of Outstanding Principal Amount of this Note in respect of which this Note Certificate is issued” attached to this Note Certificate and update the Register to reflect such outstanding principal amount. Such recoding will be made without payment of any service charge by the converting Holder.
(d) If the Holder butsubmits this Note Certificate to the Registrar for conversion, if required by the Company or Trustee, with payment of a sum sufficient to cover will pay any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any the ADSs upon such conversion of the Notes this Note (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall will pay that tax. The Company shall will pay the ADS relevant Depositary’s fees for the issuance of the ADSs.
(fe) Except as provided in Section 14.04, no adjustment shall The number of ADSs to be made for dividends issued on any ADSs issued upon the conversion of any a Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in will be determined by dividing the principal amount represented thereby. The Company shall notify of Note to be converted by 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 belowPrice. The Company’s settlement of the full Conversion Obligation shall each conversion pursuant to this Article 3 will be deemed to satisfy in full its obligation to pay the principal amount of this Note converted.
(f) If the Note and accrued and unpaid interest, if any, torecord date for the payment of any dividend or other distribution in respect of the Original Shares is on or after the Conversion Date in respect of this Note, but not includingbefore the issuance of the ADS to the Holder, the relevant Conversion Date. As a result, accrued Company will calculate 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior directly pay to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by converting Holder an amount in U.S. dollars (the “Equivalent Amount”) equal to the amount Fair Market Value of interest payable such dividend or other distribution to which the Holder would have been entitled had the Depositary on the Notes so converted (regardless of whether the converting Holder was the holder that record date been such a shareholder of record on of Original Shares and will make the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the same time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any as it makes payment of the conditions to conversion have been satisfieddividend or other distribution, or as soon as practicable thereafter, but, in any event, not later than seven Business Days thereafter.
(ig) The Person Except as provided in whose name Section 3.6(f), no adjustment will be made for dividends on any ADSs shall be issuable delivered upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this Article 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (iClick Interactive Asia Group LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any ADSs (“Fractional ADSs”) that would represent a fractional ordinary share (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ordinary share) in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. A Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
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Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0315.02. 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the certificate form required by Section 2.05(d), or in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day business day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
(k) Notwithstanding any other provision of this Indenture, no Holder is entitled to receive Common Stock to the extent that receipt of such Common Stock would cause such Holder (after application of any relevant constructive ownership rules) to exceed the Ownership Limit. 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 this Section 14.02(k), 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 provides notice to the Company that such delivery would not result in such converting Holder being in violation of the Ownership Limit.
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Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.03 and Section 14.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall or 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent (if other than close of business on the Trustee) will have any duty to determine or verify determination by Regular Record Date immediately preceding the Company Maturity Date shall receive the full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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, effect a book-entry transfer of such Note to the Conversion Agent through the facilities of the Depositary and 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are The Company shall deliver the consideration due to a converting Holder, in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date. The Company shall issue or cause to be issued, and deliver (if applicable) to the transfer agent for the Common Stock 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 ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from 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 an amount in U.S. dollars funds equal to the amount of interest that will be payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Repurchase Date following a Fundamental Change that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding date the corresponding Interest Payment interest payment is made; (2) with respect to any Notes surrendered for conversion following the Regular Record Date (or, if such Interest Payment Date is not a Business Day, immediately preceding the third Business Day immediately succeeding such Interest Payment Maturity Date); or (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) only to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes have any duty been converted following such Regular Record Date, and converting Holders shall not be required to determine or verify determination by pay the Company of whether any of the conditions to conversion have been satisfiedan equivalent interest amount.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(k) Notwithstanding any other provisions hereof, no Holder (as defined in Section 1.01, except with respect to a Global Note, “Holder” for this purpose means any holder of a beneficial interest therein) shall be entitled to take any delivery of shares of Common Stock upon conversion of any Note to the extent (but only to the extent) that, after such receipt of any shares of Common Stock upon conversion, such Holder’s Section 13 Percentage would exceed 19.99%. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, the Section 13 Percentage of such Holder would exceed 19.99
Appears in 1 contract
Samples: Indenture (Novavax Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any NoteNote and subject to Section 14.02(k), the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs ADS in accordance with subsection (j) of this Section 14.02 14.02, on the second earlier of (x) the fifth Business Day immediately following the relevant Conversion DateDate and (y) the third Business Day (which, solely for the purposes of this clause (y), shall also not include days on which banking institutions in the Xxxxxx Xxxxxxx xxx/xx Xxxx Xxxx are authorized or obligated by law or executive order to close or be closed) immediately following the relevant conversion date.
(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 to convert such 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered registered upon settlement of the Conversion Obligation to be registeredObligation, (2) surrender such Physical Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4documents,(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) if required, pay all transfer and similar Taxes. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note Any Notice of Conversion shall be surrendered for conversion deposited in duplicate at one time by the same Holder, office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Obligation with respect Agent to which such Notes shall be computed Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the basis location of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note Conversion Agent shall for all purposes be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) deposited with that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued between 9:00 a.m. and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.3:00
Appears in 1 contract
Samples: Indenture (China Lodging Group, LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.01, Section 14.02, this Section 14.03 and Section 14.08(a), upon conversion of any NoteNote pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder, in respect Holder shares of each US$1,000 principal amount of Notes being converted, a number of ADSs equal Common Stock (rounding up to the nearest whole share) (or such Reference Property pursuant to Section 14.08 in lieu of such Common Stock), at the Change of Control Conversion Rate; or (ii) Section 14.02, the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment, if applicable, payment in lieu of delivering any fractional ADSs share as set forth below under Section 14.03(c), at a Conversion Rate in accordance with subsection (j) of this Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the second Business Day immediately following the relevant Conversion DateDate (or such other date that may be applicable pursuant to a conversion in accordance with Section 14.03(c) or Section 14.03(k)). A Holder may convert fewer than all of such Holder’s Notes.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) if such Holder would have a filing and waiting period or approval requirement in advance of such Conversion under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the “HSR Act”) or any other antitrust, merger control, or competition law (collectively with the HSR Act, the “Antitrust Laws”) make or cause to be made by its ultimate parent entity as that term is defined in the case of a Global Note, comply with HSR Act any such required filings under 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) Antitrust Laws and obtain any required waiting period expirations or terminations or approvals; and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable (except as set forth in clause (c)) notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and that the Company or the Conversion Agent may reasonably require, (4) if required, pay all transfer, stamp and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h). The Trustee Representative (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or a Change of Control Repurchase Notice, as the case may be, Notice in accordance with Section 15.0315.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, 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) aboveabove except in the case of subsection (b)(i) above in which case a Note shall be deemed to have been converted the day following the expiration or termination of any applicable waiting period or the receipt of approval under any Antitrust Law; provided that, in any Notice of Conversion, a Holder that has complied with the requirements set forth in subsection (b) above shall be entitled to elect to convert all or any portion, subject to the Minimum Conversion Amount, of its Notes in connection with, and conditioned upon, the consummation of an anticipated Specified Corporate Event, in which case the Conversion Date shall be the date of the consummation of such Specified Corporate Event, and such Notes will be converted into the Common Stock immediately following the consummation of such Specified Corporate Event unless the Holder designates in its Notice of Conversion that such conversion shall occur immediately prior to such Specified Corporate Event, provided that, if the Company notifies Holders or otherwise announces that it will not complete such Specified Corporate Event, such Holder shall be entitled to revoke its Notice of Conversion at any time thereafter. If any ADSs are due In connection with a SPAC Transaction, the Company agrees to a converting Holderprovide written notice to the Holders, the Representative and the Conversion Agent of the date on which the Notes shall be convertible into the Common Stock of the SPAC. Prior to the Qualified Public Company Event, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through certificate form and by updating the Depositary or, in stockholder register of the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Company, in satisfaction of the Company’s Conversion Obligation or the Change of Control Conversion Obligation, as the case may be; provided that, following the Qualified Public Company Event, the Company shall (1) provided that the transfer agent for the Common Stock is participating in the DTC Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion to the Holder’s or its nominee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if the transfer agent for the Common Stock is not participating in the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Notice of Conversion, a certificate, registered in the name of the Holder or its nominee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must 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 Company shall receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.[Intentionally omitted]
(h) Upon Subject to Section 14.01 and 14.02, upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation or Change of Control Conversion Obligation, as applicable, 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 includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes in cash on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars cash funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding such Regular Record Date); provided that no such payment shall be required (1) for conversions following Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Scheduled Trading Day immediately succeeding following the corresponding Interest Payment Date; (3) if the Company has specified a Change of Control Repurchase Date (or, if such Interest Payment that is after a Regular Record Date is not a Business Day, and on or prior to the second Business Scheduled Trading Day immediately succeeding such following the corresponding Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date described in clause (if 2) or any Change of Control Repurchase Date described in clause (3) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon a conversion of Notes shall be treated as a stockholder become the equityholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion. Upon a conversion of Notes, prior to the Qualified Public Company Event, such Person shall execute a joinder to the LLC Agreement, in a form reasonably satisfactory to the Company.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes in respect of any Conversion Obligation and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon a conversion of the Notes in respect of any Conversion Obligation based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date. The Company through the Paying Agent, shall pay cash in lieu of delivering any fractional share of Common Stock issuable upon a conversion of the Notes in respect of any Conversion Obligation to Holders by wire transfer in immediately available funds to that Holder’s account within the United States as designated in writing by such Holder.
(k) Notwithstanding anything to the contrary contained herein, following the Qualified Public Company Event, the Company shall not issue to any Holder, and no Holder may acquire, a number of shares of Common Stock upon any conversion of Notes hereunder, to the extent that, upon such conversion, the number of shares of Common Stock then “beneficially owned” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) by such Holder and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Holder’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which such Holder is a member, but excluding shares beneficially owned by virtue of the ownership of warrants and other securities or rights to acquire securities, in each case, that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) would exceed 9.99% of the total number of shares of Common Stock then issued and outstanding (the “Maximum Percentage”); provided, however, that the Maximum Percentage shall only apply to the extent that the Common Stock is deemed to constitute an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act; provided, further that, other than in connection with a Successor Major Transaction, any Holder shall be permitted to include in its Notice of Conversion delivered in connection with a Change of Control or Fundamental Change that it is electing to make successive conversions, which conversions shall occur (in each case by written notice from such Holder to the Company) from time to time as determined by such Holder at any time prior to the end of the Successive Conversion Period (each such conversion being subject to the Maximum Percentage). For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the Commission, and the percentage held by any Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. For purposes hereof, in determining the number of outstanding shares of Common Stock, the Holders may rely on the number of outstanding shares of Common Stock as stated in the Company’s most recent quarterly or annual report filed with the Commission, or any current report filed by the Company with the Commission subsequent thereto. Upon the written request of any Holder, the Company shall, within two (2) Trading Days, confirm orally and in writing to such Holders the number of shares of Common Stock then outstanding, and such Holder shall be entitled to rely upon such confirmation for purposes hereof. Neither the Representative nor the Conversion Agent shall have any obligation to monitor whether any conversion pursuant to this Agreement is in compliance with the foregoing provisions or the requirements of the Exchange Act, and shall have no obligation to monitor the shares of Common Stock held or to be held by any Holder.
Appears in 1 contract
Samples: Note Issuance Agreement (Northern Star Investment Corp. II)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs (“Fractional ADSs”) (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ADS) in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date. For the avoidance of doubt, neither the Trustee nor any Agent shall have any responsibility to deliver ADSs to any person or deal with cash payments in relation to conversions, except for cash payments in lieu of any fractional ADS.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the specified office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the specified office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. A Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the Agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) or cause to be delivered to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third second Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
(k) In accordance with the Deposit Agreement, the Company shall issue to the ADS Custodian such Ordinary Shares required for the issuance of the ADSs upon conversion of the Notes, plus written delivery instructions (if requested by the ADS Depositary or the ADS Custodian) for such ADSs and any other information or documentation required by the ADS Depositary or the ADS Custodian in connection with each issue of Ordinary Shares and issuance and delivery of ADSs.
Appears in 1 contract
Samples: Indenture (Momo Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.01, Section 14.02, this Section 14.03, Section 14.04(b) and Section 14.08(a), upon conversion of any NoteNote pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder, in respect Holder shares of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateCommon Stock, together with a cash payment, if applicable, payment in lieu of delivering any fractional ADSs share as set forth below under Section 14.03(c), at a conversion rate in accordance with subsection Section 14.01 (jas adjusted pursuant to Section 14.05, as applicable); or (ii) of this Section 14.02 (subject to the final proviso thereto), the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a conversion rate in accordance with Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time (allowing for sufficient time to comply) and, if required, (1) pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h) and (2) pay all transfer and similar taxes as set forth in Section 14.03(d) and Section 14.03(e); and (ii) in the case of a Physical Note Note, (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay all transfer and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice, a Specified Repurchase Date Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice, Specified Repurchase Date Notice or Change of Control Repurchase Notice, as the case may be, Notice in accordance with Section 15.0315.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, 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. If any ADSs are due to a converting HolderOn the third (3rd) Business Day immediately following the relevant Conversion Date, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation or the Change of Control Conversion Obligation, as the case may be.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion[Reserved].
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Sections 14.01 and 14.02, upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation or Change of Control Conversion Obligation, as applicable, 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 includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. For the avoidance of doubt, a Holder will be entitled to any Applicable Premium payable pursuant to Section 13.02 as a separate cash payment. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars cash funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the date on which the corresponding Interest Payment Date (or, if such Interest Payment Date interest payment is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date)made; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date; (4) if the Company has specified a Change of Control Repurchase Date (or, if such Interest Payment that is after a Regular Record Date is not a Business Day, and on or prior to the second Business Day immediately succeeding such following the corresponding 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; or (6) if the Specified Repurchase Date is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date, any Specified Repurchase Date, any Fundamental Change Repurchase Date described in clause (if 3), any Change of Control Repurchase Date described in clause (4) and any Redemption Date described in clause (2) of the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon a conversion of Notes shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon a conversion based on (A) if the Daily VWAP for Conversion Date occurs prior to the consummation of a Qualified IPO, the fair market value on the relevant Conversion Date of one share of Common Stock (as determined in good faith by the Board of Directors after consultation with a reputable independent investment bank, independent valuation firm or other qualified financial institution selected by the Company, except that to the extent Disputing Holders dispute such fair market values in writing to the Company (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) on or before the 20th Business Day after receipt of such good faith determination of the Board of Directors, such fair market values shall be mutually determined by the Company and the Disputing Holders, and if the Company and the Disputing Holders are unable to reach agreement, such fair market values shall be determined by an independent nationally recognized investment bank selected by the Company and the Disputing Holders and delivered to the Trustee and the Conversion Agent (if other than the Trustee) within 30 Business Days following such Conversion Date) and (B) otherwise, the Last Reported Sale Price of the Common Stock on the relevant Conversion Date. The Company shall pay such cash amount on or before the third (3rd) Business Day following the Conversion Date, or, if the fair market value of the Company’s Common Stock is in dispute pursuant to clause (A) of this Section 14.03(j), then the Company shall pay such cash amount to the applicable Holders on or before the third (3rd) Business Day following determination of such fair market value.
Appears in 1 contract
Samples: Indenture (Bloom Energy Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.funds
(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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentarystamp, stamp court, transfer or similar issue or transfer documentary tax or similar governmental charge any other excise or property tax required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issuecourt, transfer or similar documentary tax or any other excise or property tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs the 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.in
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Scorpio Tankers Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs Common Shares equal to the Conversion RateRate as in effect on the Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs Common Share in accordance with subsection (j) of this Section 14.02 14.02, on the second Business Day immediately following the relevant Conversion Date..
(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, if required, pay all documentary, stamp or similar issue or transfer tax, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs Common Shares to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all documentary, stamp or similar issue or transfer 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). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If a Holder submits Notes for repurchase, such Holder’s rights to withdraw the Fundamental Change Repurchase Notice and convert the Notes subject to repurchase will terminate at the close of business on the second Business Day immediately preceding the relevant Fundamental Change Repurchase Date. 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs Common Shares to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance of the underlying Class A Ordinary SharesCommon Shares upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Conversion Agent may refuse to deliver the certificates representing the Common 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 ADS Depositary’s fees for the issuance of the ADSs.immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs Common 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a converting Holder shall not receive any separate additional cash payment for or additional shares representing accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) if the Notes are surrendered for conversions following conversion after 5:00 p.m., New York City time on the Regular Record Date immediately preceding the Maturity Date and before the close of business on the second Business Day immediately preceding the Maturity Date; (2) if the Company has delivered an Optional Redemption Notice pursuant to Article 16 and has specified a therein an Optional Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the date on which the corresponding Interest Payment interest amount is paid; (3) if the Company has delivered a Tax Redemption Notice pursuant to Article 17 and has specified therein a Tax Redemption Date (or, if such Interest Payment that is after a Regular Record Date is not a Business Day, and on or prior to the third Business Day immediately succeeding such Interest Payment Date)following the date on which the corresponding interest amount is paid; (34) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the date on which the corresponding Interest Payment Date (or, if such Interest Payment Date interest amount is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)paid; or (45) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) Any conversion of Notes shall be deemed to have been effected on the Conversion Date for such Notes. The Person in whose name any ADSs the Common Shares shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.conversion other than for purposes of receiving the consideration due upon conversion and, if such Person was the record Holder as of a Regular Record Date, receiving the related interest payment.
(j) The Company shall not issue any fractional ADSs Common Share upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS Common Share issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Shares on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Canadian Solar Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Except as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the third Business Day immediately following the last Trading Day of the relevant Observation Period, the Company shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs “Settlement Amount” equal to the Conversion Ratesum of the Daily Settlement Amounts for each of the 30 Trading Days during the applicable Observation Period for such Note, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 on 14.02. The Daily Settlement Amounts (if applicable) and the second Business Day immediately Daily Conversion Values (if applicable) shall be determined by the Company promptly following the relevant last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion DateValues, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs shares of Common Stock are due to a converting HolderHolders, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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, 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 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 an amount in U.S. dollars funds equal to the amount of interest payable on such Interest Payment Date on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Purchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Datelast Trading Day of the related Observation Period. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP on the Last Trading Day of the applicable Observation Period. For each Note surrendered for conversion, 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 Conversion Dateapplicable Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Appears in 1 contract
Samples: Indenture (Electronic Arts Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Class A Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Class A Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Class A Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Class A Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the certificate form required by Section 2.05(d), or in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs shares of Class A Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Class A Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion DateDate for purposes of any dividends or distribution payable on the Class A Common Stock. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Class A Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Class A Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Class A Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Evolent Health, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon To exercise its conversion of any Note, the Company shall deliver right with respect to the converting Holder, a beneficial interest in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(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, the owner of such beneficial interest must (i) comply with the procedures of the Depositary in effect at that time and, if required, Applicable Procedures for converting such beneficial interest; (ii) pay any funds equal to interest payable on the next Interest Payment Date to which that such Holder is not entitled as set forth in required to pay under clause (d) of this Section 14.02(h7.02; and (iii) pay any taxes or duties that such Holder is required to pay under the proviso to clause (e) of this Section 7.02. To exercise its conversion right with respect to a Physical Note, the Holder of such Note must (i) complete and manually sign the conversion notice on the back of the Note, or a facsimile of such conversion notice (such notice, or such facsimile, the "Conversion Notice"); (ii) in the case of a Physical deliver such signed and completed Conversion Notice and such Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion at its office; (or a facsimile, PDF or other electronic transmission thereofiii) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for furnish any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and that the Company, Conversion Agent, Trustee or Transfer Agent may require; (4iv) if required, pay any funds equal to interest payable on the next Interest Payment Date to which that such Holder is not entitled as set forth in required to pay under clause (c) of this Section 14.02(h)7.02; and (v) pay any taxes or duties that such Holder is required to pay under the proviso to clause (e) of this Section 7.02. The Trustee (and if different, first Business Day on which a Holder satisfies the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion foregoing requirements with respect to any Notes may be delivered, a Note and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect on which conversion of such Notes and has Note is not validly withdrawn otherwise prohibited under this Indenture will be the "Conversion Date" for such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03Note. If more than one The conversion of any 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 will be deemed to have been converted immediately prior to occur at the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection Date for such Note, and any converted Note or portion thereof will cease to be outstanding upon conversion.
(b) aboveIf a Holder surrenders the entire principal amount of a Note for conversion, such Person will no longer be the Holder of such Note as of the close of business on the Conversion Date for such Note. If The Person in whose name any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number shares of ADSs to which such Holder Common Stock shall be entitled, in book-entry format through issuable upon conversion of any Note will become the Depositary orholder of record of such shares as of the close of business on the Conversion Date for such conversion, in the case of ADSs bearing restrictive legends substantially Physical Settlement, or the last Trading Day of the relevant Observation Period, in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form case of a Global Note or Physical Note), in satisfaction of the Company’s Conversion ObligationCombination Settlement.
(dc) In case any certificated If a Holder surrenders only a portion of the principal amount of a Physical Note shall be surrendered for partial conversion, promptly after the Conversion Date for such portion, the Company shall execute and and, upon receipt of a Company Order, the Trustee shall authenticate and deliver to or upon the written order of the Holder of the such Note so surrendered a new Physical Note or Notes in authorized denominations in an aggregate authorized denomination, having a principal amount equal to the aggregate principal amount of the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes Physical Note surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that taxand bearing registration numbers not contemporaneously outstanding. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon Upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an beneficial interest in a Global Note, the Trustee, or Conversion Agent will promptly request that the ADS Custodian at the direction of the Trustee, shall Trustee make a notation on the "Schedule of Increases and Decreases in the Global Note" of such Global Note as to the reduction in reduce the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay by such Global Note by the principal amount of the converted beneficial interest. If all of the beneficial interests in a Global Note and accrued and unpaid interestare so converted, 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 such Global Note will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Note to be paid cancelled in full rather than cancelled, extinguished or forfeited. Notwithstanding accordance with the foregoing, if Notes are converted Applicable Procedures.
(d) If a Holder converts a Note after the close of business on a Regular Record Date and Date, but prior to the open of business on the corresponding Interest Payment Date corresponding to such Regular Record Date, Holders then (x) the Holder of such Notes as of Note at the close of business on such Regular Record Date will receive shall be entitled, notwithstanding such conversion, to receive, on such Interest Payment Date, the full unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date; and (y) the Holder of such Note must, upon surrender of such Note for conversion, accompany such Note with an 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 an amount in U.S. dollars cash equal to the amount of interest that will be payable on the Notes so converted (regardless of whether the converting such Note on such Interest Payment Date; provided, however, that a Holder was the holder of record on the corresponding Regular Record Date); provided that no need not make such payment shall be required (1A) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3B) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if and the Holder converts its Note after the close of business on such Interest Payment Regular Record Date is not a Business Day, and on or prior to the second Business Day immediately succeeding open of business on such Interest Payment Date); (C) 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 Interest Payment Date corresponding to such Regular Record Date and such Holder surrenders such Note for conversion after such Regular Record Date and on or prior to the open of business on such Interest Payment Date; or (4D) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note.
(e) If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of the Common Stock upon the conversion; provided, however, that if any tax is due because the converting Holder requested that shares of Common Stock be issued in a name other than its own, such Holder will pay such tax and the Conversion Agent, until having received a sum sufficient to pay such tax, may refuse to deliver any certificates representing the shares of Common Stock being issued in a name other than that of such Holder.
(f) Whenever a Conversion Date occurs with respect to a Note, the Conversion Agent will, as promptly as possible, and in no event later than the Business Day immediately following such Conversion Date, deliver to the Company and the Trustee written notice that a Conversion Date has occurred, which notice will state such Conversion Date, the principal amount of Notes converted on such Conversion Date and the names of the Holders that converted Notes on such Conversion Date.
(g) Upon the conversion of any Note, the Company shall settle such conversion by paying or delivering, as applicable and as provided in this Article 7, either (A) solely cash (a "Cash Settlement"); (B) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 7.02(j) (a "Physical Settlement"); or (C) a combination of cash and shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 7.02(i) (a "Combination Settlement"). The Company shall have the right to elect the Settlement Method applicable to any conversion of a Note; provided, however, that:
(i) all conversions of Notes whose Conversion Date occurs on or after June 15, 2021 will be settled using the same Settlement Method, and the Company shall send written notice of such Settlement Method to Holders, through the Trustee (the Trustee to send such notice upon written instruction from the Company), in accordance with Section 12.07, no later than the close of business on the Scheduled Trading Day immediately preceding June 15, 2021;
(ii) the Company shall use the same Settlement Method for all conversions of Notes whose Conversion Dates occur on the same day (and, for the avoidance of doubt, the Company shall not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Dates occur on different days, except as provided in clause (i) above);
(iii) if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs before June 15, 2021, the Company shall send written notice of such Settlement Method to the Holder of such Note, through the Trustee (the Trustee to send such notice upon written instruction from the Company), in accordance with Section 12.07, no later than the close of business on the Trading Day immediately following such Conversion Date;
(iv) if the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will be deemed to have elected Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of such Note equal to $1,000;
(v) if the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify the Holder of such Note of the Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of such Note; and (vi)the Settlement Method shall be subject to clause (II) of the first sentence of Section 7.07(a);
(h) The type and amount of consideration (the "Conversion Consideration") due in respect of each $1,000 principal amount of a Note to be converted shall be as follows:
(i) if Physical Settlement applies to such conversion, (I) a whole number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion (which, if not a whole number, shall be rounded down to the nearest whole number); and (II) if such Conversion Rate is not a whole number, cash in lieu of the related fractional share in an amount equal to the product of (x) the Daily VWAP on such Conversion Date (or if such Conversion Date is not a Trading Day, the immediately preceding Trading Day) and (y) the fractional portion of such Conversion Rate;
(ii) if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days in the Observation Period for such conversion; or
(iii) if Combination Settlement applies to such conversion, a settlement amount equal to (I) the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days in the Observation Period for such conversion (which, for the avoidance of doubt, shall consist of a number of whole shares of Common Stock equal to the sum of the Daily Share Amounts for each of the Trading Days in such Observation Period (which, if such sum is not a whole number, shall be rounded down to the nearest whole number) and cash in an amount equal to the sum of the Daily Cash Amounts for each of the Trading Days in such Observation Period); and (II) if the sum of the Daily Share Amounts for each of the Trading Days in such Observation Period is not a whole number, cash in lieu of the related fractional share in an amount equal to the product of (x) the Daily VWAP on the last Trading Day of such Observation Period and (y) the fractional portion of such sum.
(i) With respect to any conversion of Notes to which Cash Settlement or Combination Settlement applies, the Company shall determine the Conversion Consideration due thereupon promptly following the last day of the applicable Observation Period and shall promptly thereafter notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will shall have any duty to determine or verify determination by the Company of whether responsibility for any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversiondetermination.
(j) The Except as set forth in Section 7.03, Section 7.04, and Section 7.08, hereof, the Company shall not issue any fractional ADSs pay or deliver or cause to be paid or delivered, as the case may be, the Conversion Consideration due upon the conversion of any Note to the Notes Holder thereof as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on the third Business Day immediately following the last Trading Day of the Observation Period for such conversion; and shall instead pay cash (ii) if Physical Settlement applies to such conversion, on the third Business Day immediately following the Conversion Date for such conversion.
(k) If a Holder converts more than one Note on a single Conversion Date, the Conversion Consideration due in lieu respect of delivering any fractional ADS issuable upon such conversion will be computed based on the Daily VWAP total principal amount of Notes converted on such Conversion Date by such Holder.
(l) If a Holder converts a Note, the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on the relevant Note, and the Company's delivery of the Conversion Consideration due upon such conversion will be deemed to satisfy and discharge in full the Company's obligation to pay the principal of such Note and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion Date; provided, however, that if a Holder converts a Note after a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, the Company will still be obligated to pay the interest due on such Interest Payment Date to such Holder. As a result, except as otherwise provided in the proviso to the immediately preceding sentence, any accrued and unpaid interest with respect to a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, if both cash and shares of the Common Stock are delivered upon the conversion of a Note, accrued and unpaid interest will be deemed to be paid first out of the amount of cash so delivered.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, effect a book-entry transfer of such Note to the Conversion Agent through the facilities of the Depositary and comply with the Depositary’s then-applicable conversion procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, 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(h13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs the shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesand any expense (including reasonable attorneys’ fees) due in connection therewith, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except unless such Holder is the Holder on a Regular Record Date and such conversion occurs between such Regular Record Date and the Interest Payment Date to which it relates as set forth below. The Except as set forth below, the Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from by a Holder 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless converted; provided, however, that, subject to any rules or procedures of whether the converting Holder was Depositary to the holder of record on the corresponding Regular Record Date); provided that contrary, no such payment shall be required required: (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date; (2) with respect to any Notes surrendered for conversion following the Regular Record Date (or, if such Interest Payment Date is not a Business Day, immediately preceding the third Business Day immediately succeeding such Interest Payment Maturity Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) only to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent ; or (if 4) in connection with any conversion of Notes, other than any conversion in connection with a Make-Whole Adjustment Event, that occurs prior to March 27, 2021. As a result of the Trustee) will have any duty to determine or verify determination by foregoing, the Company of whether any of shall pay interest on the conditions Maturity Date on all Notes converted after the Regular Record Date immediately preceding the Maturity Date, and converting Holders will not be required to conversion have been satisfiedpay the Company an equivalent interest amount.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion, except for purposes of enforcing its right to receive (x) the consideration due upon conversion, and (y) in the case of a conversion following a Regular Record Date and prior to the related Interest Payment Date, interest payable on such Notes.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(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
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver pay to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number cash (the “Settlement Amount”) as set forth in this Section 14.02.
(i) [Reserved.]
(ii) [Reserved.]
(iii) [Reserved.]
(iv) The Settlement Amount in respect of ADSs any conversion of Notes shall be computed as follows: the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion RateValues for each of the 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Conversion Values, together with a cash payment, the Company shall notify the Trustee and the Conversion Agent (if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (jother than the Trustee) of this Section 14.02 on the second Business Day immediately following Daily Conversion Values. The Trustee and the relevant Conversion DateAgent (if other than the Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registeredconverted, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting HolderExcept as set forth in Section 14.03(b) and Section 14.07(a), the Company shall issue or cause to be issuedpay the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, and deliver (provided, if applicable) to the Conversion Date is after the Regular Record Date for the last Interest Payment Date, such Holderpayment will occur on the Maturity Date, or such Holder’s nominee or nominees, on the full number of ADSs to which such Holder shall be entitled, in book-entry format through third Business Day immediately following the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction last Trading Day of the Company’s Conversion ObligationObservation Period.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company Nothing herein shall pay preclude any documentary, stamp, issue, transfer tax withholding required by law or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSsregulations.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14[Reserved.]
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person who has converted such Notes shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date[Reserved.]
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 9.02, Section 9.03(b) and Section 9.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount Principal Amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 9.02, and an Interest Make-Whole Payment or Qualifying Fundamental Change Payment, if applicable, on the second Business Day immediately following the relevant Conversion DateDate (or such longer period as the Applicable Procedures of the Depositary may require, with respect to any conversions by Beneficial Owners of interests in a Global Note).
(b) Subject to Section 14.02(e9.02(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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h9.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver a duly completed an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) 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 of Conversion”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, at the office of the Conversion Agent and state in writing therein the principal amount 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 ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment or Qualifying Fundamental Change Payment, if applicable) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)9.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) Agent shall notify the Company of any conversion pursuant to this Article 14 9 on the Conversion Date, or promptly following instructions Date for such conversion. The exercise of such conversion rights shall be irrevocable. No Notice of Conversion with respect to any Holder may surrender Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof conversion if such Holder has also delivered (a) a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0310.02, or (b) a Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice in accordance with Section 3.08. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment or Qualifying Fundamental Change Payment, if applicable, with respect to such Notes shall be computed on the basis of the aggregate principal amount 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to its transfer agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion ObligationObligation together with any Interest Make-Whole Payment or Qualifying Fundamental Change Payment, if applicable.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount Principal Amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Company shall conversion of such a Holder’s Note may be delayed if the Trustee, and the Conversion Agent does not, receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any ADSs 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 ADS Note Custodian (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 Principal Amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow and in connection with an Interest Make-Whole Payment, if applicable. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and Date, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must shall be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so 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 DateStated Maturity; (2) if the Company has specified a Redemption Date that for conversions in respect of which an Interest Make-Whole Payment is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date)payable upon conversion; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (orDate, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)in respect of Notes converted; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Stated Maturity, any Holders of record entitled to receive an Interest Make-Whole Payment upon conversion described in clause (if 2) above and any Fundamental Change Repurchase Date described in clause (3) above shall receive the full interest payment due on the Stated Maturity or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date. 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 Conversion Obligation due upon conversion and the Interest Make-Whole Payment or Qualifying Fundamental Change Payment, if applicable, and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
(k) Notwithstanding anything to the contrary in this Indenture, unless the Company shall have obtained the requisite Stockholder Approval pursuant to NASDAQ Marketplace Rule 5635(d) or the listing requirements of such other Relevant Stock Exchange,
(i) the number of shares of Common Stock the Company may deliver in respect of the Notes, including those delivered as Common Stock Interest, in connection with an Interest Make-Whole Payment, or in connection with a Qualifying Fundamental Change Payment will not exceed, and
(ii) the Conversion Price or the Conversion Rate will not be adjusted beyond the amount that results in the total number of shares issuable in respect of the Notes exceeding,
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 and the Interest Make-Whole Payment, if applicable, on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 provide an irrevocable notice (a “Notice of Conversion”) by (i) in the case of a Global Note, comply complying with the procedures of the Depositary in effect at that time and, if required, pay (1) paying 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 (2) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (ii) in the case of a Physical Note (1) completecompleting, manually sign signing and deliver a duly completed delivering the irrevocable written notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state stating 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 ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment) to be registered, (2) surrender surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish furnishing appropriate endorsements and transfer documents and documents, (4) if required, pay paying 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 (5) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if any, 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation together with any cash or shares of Common Stock issuable in respect of any Interest Make-Whole Payment applicable to the conversion of such Note pursuant to Section 14.01(b).
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.01(b), upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; (2) for Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent close of business on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (if 2) of the immediately preceding sentence and Holders of Notes entitled to an Interest Make-Whole Payment upon conversion shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date and, with respect to an Interest Make-Whole Payment satisfied in whole or in part with shares of Common Stock, based on the simple average of the Daily VWAP of the Common Stock for the ten Trading Days immediately preceding the Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.01, Section 14.02, this Section 14.03 and Section 14.08(a), upon conversion of any NoteNote pursuant to (i) Section 14.01, the Company shall deliver to the converting Holder, in respect Holder shares of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion RateCommon Stock, together with a cash payment, if applicable, payment in lieu of delivering any fractional ADSs share as set forth below under Section 14.03(c) (or such Reference Property pursuant to Section 14.08 in lieu of such Common Stock), at the Change of Control Conversion Rate; or (ii) Section 14.02, the Company shall deliver to the converting Holder shares of Common Stock, together with a cash payment in lieu of delivering any fractional share as set forth below under Section 14.03(c), at a Conversion Rate in accordance with subsection (j) of this Section 14.02 (as adjusted pursuant to Section 14.05, as applicable), in each case (i) and (ii), on the second Business Day immediately following the relevant Conversion DateDate (or such other date that may be applicable pursuant to a conversion in accordance with Section 14.03(c) or Section 14.03(k)). A Holder may convert fewer than all of such Xxxxxx’s Notes.
(b) Subject to Section 14.02(e), before Before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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) would have a filing and (ii) in the case of a Physical Note waiting period or approval
(1) complete, manually sign and deliver a duly completed an irrevocable (except as set forth in clause (c)) notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and that the Company or the Conversion Agent may reasonably require, (4) if required, pay all transfer, stamp and similar taxes as set forth in Section 14.03(d) and Section 14.03(e) and (5) if required, pay funds to the Conversion Agent equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.03(h). The Trustee Representative (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or a Change of Control Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Change of Control Repurchase Notice, as the case may be, Notice in accordance with Section 15.0315.04. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation or the Change of Control Conversion Obligation, as the case may be, 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. If above except in the case of subsection (b)(i) above in which case a Note shall be deemed to have been converted the day following the expiration or termination of any ADSs are due applicable waiting period or the receipt of approval under any Antitrust Law; provided that, in any Notice of Conversion, a Holder that has complied with the requirements set forth in subsection (b) above shall be entitled to a converting Holderelect to convert all or any portion, subject to the Minimum Conversion Amount, of its Notes in connection with, and conditioned upon, the Company consummation of an anticipated Specified Corporate Event, in which case the Conversion Date shall issue or cause to be issuedthe date of the consummation of such Specified Corporate Event, and deliver (if applicable) such Notes will be converted into the Common Stock immediately following the consummation of such Specified Corporate Event unless the Holder designates in its Notice of Conversion that such conversion shall occur immediately prior to such HolderSpecified Corporate Event, provided that, if the Company notifies Holders or otherwise announces that it will not complete such Holder’s nominee or nomineesSpecified Corporate Event, the full number of ADSs to which such Holder shall be entitledentitled to revoke its Notice of Conversion at any time thereafter. In connection with a Reverse Merger, in book-entry format through the Depositary orCompany agrees to provide written notice to the Holders, in the case of ADSs bearing restrictive legends substantially in Representative and the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction Conversion Agent of the Company’s Conversion Obligation.date on which the Notes shall be convertible into
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or TrusteeCompany, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must 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 Company shall receives a sum sufficient to pay any tax that is due by such Xxxxxx in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0414.05, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
[Intentionally Omitted] (h) Upon Subject to Section 14.01 and 14.02, upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation or Change of Control Conversion Obligation, as applicable, shall be deemed to satisfy in full its obligation to pay the principal amount of the Note Notes and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes in cash on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars cash funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding such Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.be
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon a conversion of Notes shall be treated as a stockholder become the equityholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company Company, through the Paying Agent, shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon a conversion based of the Notes in respect of any Conversion Obligation to Holders by wire transfer in immediately available funds to that Xxxxxx’s account within the United States as designated in writing by such Holder.
(k) Notwithstanding anything to the contrary contained herein, the Company shall not issue to any Holder, and no Holder may acquire, a number of shares of Common Stock upon any conversion of Notes hereunder, to the extent that, upon such conversion, the number of shares of Common Stock then “beneficially owned” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) by such Holder and its Affiliates and any other persons or entities whose beneficial ownership of Common Stock would be aggregated with such Holder’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which such Holder is a member, but excluding shares beneficially owned by virtue of the ownership of warrants and other securities or rights to acquire securities, in each case, that have limitations on the Daily VWAP right to convert, exercise or purchase similar to the limitation set forth herein) would exceed 9.99% of the total number of shares of Common Stock then issued and outstanding (the “Maximum Percentage”) prior to the 70th day following the date on which the applicable Holder elects to convert Notes into Common Stock (any period during which the Maximum Percentage applies, a “Maximum Percentage Period”); provided, however, that the Maximum Percentage shall only apply to the extent that the Common Stock is deemed to constitute an “equity security” pursuant to Rule 13d-1(i) promulgated under the Exchange Act; provided, further that, other than in connection with a Successor Major Transaction, any Holder shall be permitted to include in its Notice of Conversion delivered in connection with a Change of Control or Fundamental Change that it is electing to make successive conversions, which conversions shall occur (in each case by written notice from such Holder to the Company) from time to time as determined by such Holder at any time prior to the end of the Successive Conversion Period (each such conversion being subject to the Maximum Percentage). Furthermore, and for the relevant Conversion Date.greater clarity, solely during any
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately after the close of business on the Conversion Date for such conversion, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second Business Day immediately following such Conversion Date and register such shares of Common Stock in the relevant Conversion Datename of such converting Holder (or such person as such converting Holder may nominate in accordance with Section 13.02(b)) in the Company’s register.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, in addition to any certificates that may be required to be delivered pursuant to Section 13.12, 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(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and such information or documentation necessary to fulfill any anti-money laundering and/or “know your customer” requirements prescribed by applicable law 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(h13.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 XIII on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates (or, if the Note to be converted is a Global Note, a book-entry transfer through the Depositary) for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall may refuse to issue the shares of Common Stock in a name other than the Holder’s name and the 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following whose Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding after 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 after the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record as of the Conversion Agent (if close of business on the Regular Record Date immediately preceding the Maturity Date, or immediately preceding any Fundamental Change Repurchase Date or Redemption Date, each as described in the immediately preceding sentence, shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Subject to Section 13.12, the Person in whose name any ADSs the shares of Common Stock issued upon conversion is registered in the Company’s register shall be issuable upon conversion shall be treated as deemed to become a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
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Samples: Indenture (Quotient LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 and the Interest Make-Whole Payment, if applicable, on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Xxxxxx’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 provide an irrevocable notice (a “Notice of Conversion”) by (i) in the case of a Global Note, comply complying with the procedures of the Depositary in effect at that time and, if required, pay (1) paying 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 (2) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (ii) in the case of a Physical Note (1) completecompleting, manually sign signing and deliver a duly completed delivering the irrevocable written notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state stating 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 ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment) to be registered, (2) surrender surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish furnishing appropriate endorsements and transfer documents and documents, (4) if required, pay paying 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 (5) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if any, 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation together with any cash or shares of common stock issuable in respect of any interest make-whole payment applicable to the conversion of such Note pursuant to Selection 14.01(b).
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests any such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall must pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon Subject to Section 14.01(b), upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from beginning after the close of business on any Regular Record Date to and ending at the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; (2) for Notes surrendered for conversion after the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record at the Conversion Agent close of business on the Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (if 2) of the immediately preceding sentence and Holders of Notes entitled to an Interest Make-Whole Payment upon conversion shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date and, with respect to an Interest Make-Whole Payment satisfied in whole or in part with shares of Common Stock, based on the simple average of the Daily VWAP of the Common Stock for the ten Trading Days immediately preceding the Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 11.02, Section 11.05(b) and Section 11.09(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (jSection 11.02(j) of this and, if applicable, a cash payment as described under Section 14.02 11.03, on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e11.02(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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h11.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver a duly completed an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to 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 (5) if required, pay all transfer or similar taxes, if any. In addition, a Holder may be required to provide a certification to the Company as to whether the Person or Persons receiving shares of Common Stock upon conversion is, or would, as a result of such conversion, become the beneficial owner of shares of Common Stock outstanding at such time in excess of any Beneficial Ownership Limits then applicable to such Person or Persons. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 11 on the Conversion Date, or promptly following instructions Date for such conversion. The exercise of such conversion rights shall be irrevocable. No Notice of Conversion with respect to any Holder may surrender Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof conversion if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0312.02. 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) aboveSection 11.02(b). If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Company shall pay Conversion Agent may refuse to deliver the ADS Depositary’s fees for the issuance certificates representing shares of the ADSsCommon Stock being issued in a name other than 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 14.0411.06, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 1411.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Note Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and Date, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must shall be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so 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 Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (orDate, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date)in respect of Notes converted; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (orDate, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)in respect of Notes converted; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date. 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 Conversion Obligation due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.01(b), Section 14.03, Section 14.04 and Section 14.08(a), upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, converted a number of ADSs shares of Common Stock equal to the Conversion RateRate (as adjusted for any Additional Shares as a result of a Voluntary Conversion Increase, if any), together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 provide an irrevocable notice (a “Notice of Conversion”) by (i) in the case of a Global Note, comply complying with the procedures of the Depositary in effect at that time and, if required, pay (1) paying 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 (2) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e) and (ii) in the case of a Physical Note (1) completecompleting, manually sign signing and deliver a duly completed delivering the irrevocable written notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state stating 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 ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender surrendering such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish furnishing appropriate endorsements and transfer documents and documents, (4) if required, pay paying 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 (5) paying all transfer and similar taxes as set forth in Section 14.02(d) and Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Inotek Pharmaceuticals Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 9.02, Section 9.03(b) and Section 9.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 9.02, and an Interest Make-Whole Payment, if applicable, on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e9.02(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 interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h9.02(h) and (ii) in the case of a Physical Note Note, the Holder thereof shall (1) complete, manually sign and deliver a duly completed an irrevocable notice (or a facsimile, PDF or other electronic transmission thereof) 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment, if applicable) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)9.02(h) and (5) if required, pay all transfer or similar taxes, if any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 9 on the Conversion Date, or promptly following instructions Date for such conversion. The exercise of such conversion rights shall be irrevocable. No Notice of Conversion with respect to any Holder may surrender Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof conversion if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0310.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation and Interest Make-Whole Payment, if applicable, 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion ObligationObligation together with any Interest Make-Whole Payment, if applicable.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall deliver a Company Order, and the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares of Common Stock to be issued in a name other than the such Holder’s name, in which case the such Holder shall pay that tax. The Company shall pay Conversion Agent may refuse to deliver the ADS Depositary’s fees for the issuance certificates representing shares of the ADSsCommon Stock being issued in a name other than such Xxxxxx’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Xxxxxx in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any ADSs 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 ADS Note Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow and in connection with an Interest Make-Whole Payment, if applicable. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and Date, but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must shall be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so 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 for conversions in respect of which an Interest Make-Whole Payment is payable upon conversion (or would have been payable but for the Company has specified a Redemption Date that is after a conversion occurring following the Regular Record Date and on or prior to preceding the second Business Day immediately succeeding the corresponding Interest Payment Date (orFebruary 1, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such 2021 Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (orDate, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)in respect of Notes converted; or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date, any Holders of record entitled to receive an Interest Make-Whole Payment upon conversion described in clause (if 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 other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted or repurchased following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder become the holder of record of such shares as of the close of business on the relevant Conversion Date. 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 Conversion Obligation due upon conversion and the Interest Make-Whole Payment, if applicable, and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record Date shall have the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with clause (h) above.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Senseonics Holdings, Inc.)
Conversion Procedure; Settlement Upon Conversion. (ai) Upon conversion of To convert any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.Holder must:
(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 (ii) in the case of a Physical Note (1) complete, manually sign (by manual, electronic or facsimile signature) and deliver a duly completed an irrevocable notice to the Trustee (with a copy to the Company, the Calculation Agent and the Conversion Agent Agent), as set forth in the Form of Notice of Conversion (or a facsimile, PDF facsimile or other delivery by electronic transmission mail of a pdf thereof) (a “Notice of Conversion”) at the office ), and all of the Conversion Agent and state in writing therein the principal amount of Notes with respect to be converted and the name or names (with addresses) in which such Holder wishes to exercise its conversion rights pursuant to Section 14.01; provided that it shall only be a requirement for the certificate or certificates for conversion of any ADSs to be delivered upon settlement Note under this Indenture that the Notice of Conversion has been received by the Conversion Obligation to be registered, Trustee;
(2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents;
(3) if required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(e) and Section 14.02(f); and
(4) if required, pay funds equal to any interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h14.02(g). The In addition, a processing fee of €1,000 to receive and onward-process any Notices of Conversion shall be paid by the Company to the Trustee substantially concurrently with the steps set forth in this sub-clause (i).
(ii) Following receipt of the Notice of Conversion as set forth in Section 14.02(b)(i) above, the Trustee shall (1) update the Note Registrar to reduce the aggregate outstanding principal amount of the Notes by the aggregate principal amount of Notes so converted and (2) transmit such Notice of Conversion to the Calculation Agent (with a copy to the Company) at the email address set forth in Section 17.03, specifying the applicable Conversion Date.
(iii) Following receipt of the Notice of Conversion, the Calculation Agent shall:
(1) calculate the Settlement Amount as set forth in Section 14.02(b) below;
(2) complete Annex A to the Notice of Conversion;
(3) transmit the completed Notice of Conversion to the Conversion Agent at [Address]; and
(4) notify the Company, the Trustee and the Conversion Agent of (x) such Settlement Amount and (y) if differentapplicable, the amount of cash payable in lieu of fractional shares of Common Stock pursuant to Section 14.02(c).
(iv) Once notified by the Calculation Agent, the Trustee shall communicate the Settlement Amount (as well as the amount of any cash payable in lieu of any fractional share of Common Stock, if any) to the relevant Holder. For the avoidance of doubt, the Trustee shall not have any responsibility for the calculation of the Settlement Amount or any such determination.
(v) Upon receipt from the Calculation Agent of the completed Notice of Conversion pursuant to Section 14.02(a)(iii)(3), the Conversion AgentAgent shall confirm to the Company as soon as reasonably practicable (but in any event no later than two (2) Business Days from receipt thereof) receipt of the Notice of Conversion by submitting an agent notice substantially in the form set forth in Attachment 3 hereto (the “Agent Notice”).
(b) Subject to this Section 14.02 and Section 14.07(a), following receipt of the Agent Notice, the Company shall deliver to the converting Holder, in full satisfaction of its Conversion Obligation, shares of the Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 14.02(c), as set forth in this Section 14.02(b).
(i) The shares of Common Stock (together with cash in lieu of any fractional share of Common Stock in accordance with Section 14.02(c)) deliverable in respect of any Notes surrendered for conversion (such shares of Common Stock and cash, together, the “Settlement Amount”) and deliverable by the Company (subject to any Exchange Election) shall notify be determined by the Company Calculation Agent as, in respect of any each €1,000 principal amount of Notes being surrendered for conversion pursuant (subject to this Article 14 a minimum aggregate principal amount of €1,000,000 being surrendered for conversion), subject to Section 14.02(b)(ii), as a number of shares of Common Stock equal to (A) the product (rounded to nearest whole multiple of 0.0001 (with 0.00005 being rounded upward) of a share of Common Stock) of (x) the Conversion Rate in effect at the Close of Business on the Conversion Date and (y) the Foreign Exchange Rate (as if converting Euros to United States dollars) on such Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof (B) if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company Maximum Rate applies in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Noticeconversion, as the case may beMaximum Rate, plus, in each case, cash in lieu of any fractional share of Common Stock in accordance with Section 15.03. 14.02(c).
(ii) If more than one Note shall be surrendered for conversion at pursuant to any one time by the same HolderNotice of Conversion, the Conversion Obligation Settlement Amount with respect to such Notes conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(c) The Company shall not issue any fractional share of Common Stock upon conversion (or exchange pursuant to 14.02(i)) of the Notes and shall instead pay cash in Euros in lieu of any fractional share of Common Stock deliverable upon conversion (or exchange) in an amount calculated by the Calculation Agent and equal to the product (rounded to the nearest whole multiple of €0.01 (with €0.005 being rounded upward)) of (i) Daily VWAP of the Common Stock on the relevant Conversion Date, (ii) by the Foreign Exchange Rate (as if converting US dollars to Euros) on such Conversion Date and (iii) the relevant fraction of a share of Common Stock. To the extent that any cash is payable pursuant to this Section 14.02(c), the Settlement Amount in respect of the relevant conversion (or exchange) shall (in accordance with the definition thereof) include such cash, it being understood that other than as set forth in Section 14.02(h) below with respect to cash interest payments, no other cash shall be due and payable to any Holder pursuant to this Article 14 in connection with such Holder’s conversion (or exchange) of its Notes.
(i) A Note shall be deemed to have been converted immediately prior to the close of business on the date on which a Notice of Conversion has been received by the Trustee in compliance with the requirements set forth in Section 14.02(a) above (the “Conversion Date”), which shall be conclusively determined by the Trustee.
(ii) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due Subject to a converting HolderSection 14.07(a), the Company shall issue or cause deliver the Settlement Amount due in respect of the Conversion Obligation as quickly as possible following the Conversion Date and in no event later than the fifth (5th) Business Day immediately following the relevant Conversion Date.
(iii) If any shares of Common Stock are due to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nomineesconverting Holders, the full Company shall, upon receipt of the Agent Notice, issue the required number of ADSs shares of Common Stock to which such Holder shall be entitledentitled in satisfaction of the Company’s Conversion Obligation and register them in its uncertificated share register (Wertrechtebuch), in book-entry format through with the Depositary or, respective Holder as specified in the case Notice of ADSs bearing restrictive legends substantially Conversion being recorded as initial holder of such shares of Common Stock. The Company shall provide a copy of its uncertificated share register (Wertrechtebuch) so amended to the Conversion Agent. Upon registration in the form Company’s uncertificated share register (Wertrechtebuch) of the required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form number of a Global Note or Physical Note), shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation, the Company shall deliver a copy of its uncertificated share register (Wertrechtebuch) to its share register, Computershare Limited, and cause Computershare Limited to deliver the required number of shares of Common Stock to the Holder’s account stated in the Conversion Notice.
(de) In case any certificated Note Notes shall be surrendered for partial conversion, in €1,000,000 principal amount or an integral multiple of €500,000 in excess thereof, the Company shall execute and the Trustee (or an authenticating agent appointed by the Trustee) shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ef) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharessuch Note, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company may refuse to deliver 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. For the avoidance of doubt, the Calculation Agent shall pay not be responsible for determining the ADS Depositary’s fees for amount of such sum (or any component thereof) as described in the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14immediately preceding sentence.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a converting Holder shall not receive any separate cash payment for representing accrued and unpaid interest, if any, interest except as set forth in the paragraph below. The Company’s settlement payment or delivery, as the case may be, of the full Conversion Obligation Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, interest 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 cancelledcanceled, extinguished or forfeited. Notwithstanding anything in this Article 14 to the foregoingcontrary, if Notes are converted after the close Close of business Business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as at the Close of the close of business Business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from after the close Close of business Business on any Regular Record Date to the open Open of business Business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall need be required made:
(1i) if the Notes are surrendered for conversions conversion following the Regular Record Date immediately preceding the Maturity Date; ;
(2ii) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date Date; or
(or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4iii) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to To convert a Note as set forth above, such Holder shall (i) beneficial interest in the case of a Global Note, a Holder must:
(1) comply with the procedures of the Depositary Applicable Procedures for converting a beneficial interest in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, Global Note;
(2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to as described in Section 4.02(f);
(3) pay any transfer or similar taxes or duties for which such the Holder is not entitled responsible as set forth described in Section 14.02(h). The Trustee 4.04; and
(4) pay the applicable fees and if differentexpenses of the Ordinary Shares Depositary for the issuance of the ADSs as described in the Deposit Agreement.
(b) To convert a Certificated Note, a Holder must:
(1) complete and manually sign the conversion notice on the back of the Note, or a facsimile of the conversion notice;
(2) deliver the conversion notice, which is irrevocable, and the Note to the Conversion Agent;
(3) shall notify if required, furnish appropriate endorsements and transfer documents;
(4) if required, furnish written acknowledgements, certifications and agreements in connection with the Company issuance of ADSs by the Ordinary Shares Depositary upon deposit of Ordinary Shares;
(5) if required, pay funds equal to interest payable on the next Interest Payment Date as described in Section 4.02(f);
(6) pay any conversion transfer or similar taxes or duties for which the Holder is responsible as described in Section 4.04; and
(7) pay the applicable fees and expenses of the Ordinary Shares Depositary for the issuance of ADSs pursuant to this Article 14 the Deposit Agreement.
(c) The date on which the Holder complies with all of the requirements in paragraph (a) or (b) above is the “Conversion Date.” The Notes will be deemed to have been converted immediately prior to the close of business on the Conversion Date and the converting Holder will be treated as a Holder of record of the ADSs issued upon conversion as of the close of business on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for .
(d) Upon conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice the Company shall deliver to the Company Holder of the Notes a number of ADSs equal to (1)(A) the aggregate principal amount of Notes to be converted divided by (B) $1,000, multiplied by (2) the applicable Conversion Rate on the relevant Conversion Date and cash in respect lieu of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, fractional ADSs calculated in accordance with Section 15.034.03. 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 number of full ADSs that shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted therebyhereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close . Upon conversion of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting HolderNote, the Company shall issue or cause deliver the ADSs (and cash in lieu of fractional ADSs) due in respect of such conversion to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to on the unconverted portion of third Business Day immediately following the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionrelevant Conversion Date.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes or the issuance of the underlying Class A Ordinary Shares, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay undertake to deliver to the ADS Depositary’s fees custodian under the Deposit Agreement such Ordinary Shares required for the issuance of the ADSs by the Ordinary Shares Depositary upon conversion of the Notes, plus written delivery instruction (if requested by the Ordinary Shares Depositary or the custodian) for such ADSs and any other information or documentation reasonably required by the Ordinary Shares Depositary or the custodian in connection with each deposit of Ordinary Shares and issuance and delivery of ADSs. The delivery of ADSs by the Ordinary Shares Depositary to Holders upon conversion of their Notes or their designated transferees will be governed by the terms of the Deposit Agreement.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the Upon conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall will not receive receive, except as described below, any separate cash payment for accrued and unpaid interest. Instead, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, interest 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 will be deemed to be paid in full by the ADSs received by the Holder upon conversion rather than cancelled, extinguished or forfeited. Delivery of Ordinary Shares to the Ordinary Shares Depositary for the issuance to the Holder of the full number of ADSs into which the Note is convertible, together with any cash payment of such Holder’s fractional ADSs pursuant to Section 4.03, will thus be deemed to satisfy the Company’s obligation to pay the principal amount of a Note and to pay accrued and unpaid interest on the Note to, but not including, the Conversion Date. Notwithstanding the foregoingimmediately preceding paragraph, if Notes are converted surrendered for conversion after the close of business on a any Regular Record Date and prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of at the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes Note on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion by a Holder during the period from and after 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided , except that no such payment shall need to be required made:
(1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding corresponding Interest Payment Date;
(2) if the 2017 Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date;
(3) if the Company has specified a Tax Change Redemption Date (or, if such Interest Payment that is after a Regular Record Date is not a Business Day, and on or prior to the second Business Day immediately succeeding such corresponding Interest Payment Date); or ;
(4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts exists overdue interest remains unpaid at the time of conversion with respect to such Notes; or
(5) in respect of any conversions that occur after the Regular Record Date immediately preceding the Maturity Date. For the avoidance of doubt, all Holders on the Regular Record Date immediately preceding the Maturity Date will receive and retain the full interest payment due on the Maturity Date regardless of whether their Notes are converted following such Regular Record Date.
(g) In the case of any Note which is converted in part only, upon such conversion the Company shall execute and the Trustee shall, upon receipt of a Company Order, authenticate and deliver to the Holder thereof, without service charge, a new Note or Notes of authorized denominations in an aggregate principal amount equal to, and in exchange for, the unconverted portion of the principal amount of such Note. Neither A Note may be converted in part, but only if the principal amount of such part is an integral multiple of $1,000 and the principal amount of such Note to remain outstanding after such conversion is equal to $1,000 or any integral multiple of $1,000 in excess thereof. Upon the conversion of an interest in a Global Note, the Trustee nor and the Depositary shall reduce the principal amount of such Global Note in their records. The Company shall notify the Trustee in writing of any conversions of Notes effected through any Conversion Agent (if other than the Trustee.
(h) will have any duty If a Holder has already delivered a Fundamental Change Repurchase Notice under Section 3.01 or a 2017 Repurchase Notice under Section 3.04 with respect to determine or verify determination by a Note, such Holder may not surrender that Note for conversion until the Holder has withdrawn the applicable repurchase notice in accordance with the Indenture. If the Company has designated a Tax Change Redemption Date as described under Section 6.01, a Holder that complies with the requirements for conversion described in Section 4.02(a) or Section 4.02(b), as applicable, will be deemed to have delivered a notice of whether any of the conditions its election not to conversion have been satisfiedits Notes redeemed.
(i) The Person If the Company’s ADS facility maintained with the Ordinary Shares Depositary is terminated for any reason but the Ordinary Shares are then listed for trading on a U.S. national securities exchange, the Notes shall become convertible into Ordinary Shares. In all such case, all reference to ADSs in whose name any ADSs this First Supplemental Indenture shall be issuable upon conversion shall be treated as a stockholder of record as deemed to refer to Ordinary Shares, all references to the Last Reported Sale Price of the close of business on ADSs will be deemed to refer to the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs upon conversion Last Reported Sale Price of the Notes Ordinary Shares, and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Dateother appropriate adjustments will be made hereunder to reflect such change.
Appears in 1 contract
Samples: First Supplemental Indenture (Vipshop Holdings LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(c), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company specifying its intention to convert the Note (bor a portion thereof) (the “Conversion Notice”) and the Note for cancellation to the Company. Within three Business Days after the delivery of the Note and the Conversion Notice to the Company pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) if required by applicable Law, deliver to the Company’s Holder certificate(s) representing the number of ADSs delivered upon each such conversion and (iii) subject to Section 3.3(c), cancel the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with ARTICLE 6.
(db) The Company shall not issue any Fractional ADS upon conversion of the Note and shall instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the Last Reported Sale Price of the ADSs on the relevant Conversion Date.
(c) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, promptly 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 note (consistent in authorized denominations all respects with this Note, other than with respect to principal amount) denominated in U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ed) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon such conversion of the Notes Note (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(ge) Upon the conversion of an interest in a Global Noteany conversion, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this ARTICLE 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 Holder will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of ADSs upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Except as provided in whose name Section 4.2, no adjustment shall be made for dividends on any ADSs shall be issuable delivered upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this ARTICLE 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Ctrip Com International LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(b), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice to the requirements set forth in subsection Company (bthe “Conversion Notice”) and the Note for cancellation to the Company. Within five (5) Business Days after the delivery of the Note and the Conversion Notice to the Company pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Class A Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) deliver to the Holder certificate(s) representing the number of Class A Shares delivered upon each such conversion, (iii) deliver to the Holder a certified copy of the register of members of the Company, reflecting the Holder’s ownership of the Class A Shares delivered upon each such conversion, (iv) pay the Top-up Interest and the accrued and unpaid Regular Interest on the principal amount of the Note or the relevant portion thereof as being converted, in each case to (and including) the Conversion ObligationDate, and (v) subject to Section 3.3(b), cancel the Note. No Conversion Notice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Article 5.
(db) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling the Note upon such surrender, 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 note denominated in authorized denominations U.S. dollars and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversionHolder.
(ec) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs the Class A Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case (i) if in the name of any Person which is an Affiliate of the Holder (which, for the avoidance of doubt, shall include XX.xxx, Inc. or any of its Affiliates), the Company shall pay that tax, or (ii) if in the name of any other Person, the Holder shall pay that tax. The Company shall pay the ADS Depositaryrelevant fees for issuance of the Class A Shares and shall pay the relevant depositary’s fees for any future conversion of the issuance of issued Class A Shares into the ADSs.
(fd) Except as provided in Section 14.044.2, no adjustment shall be made for dividends on any ADSs issued Class A Shares delivered upon the any conversion of any this Note as provided in this Article 143.
(ge) Upon Without prejudice to the conversion of an Holder’s right to receive the interest in a Global Noteaccordance with clause (iv) of Section 3.3(a) and subject to Section 3.3(h), the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this Article 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interest thereon, if any. As a result, such 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Holder in whose name the certificate for any ADSs shall be issuable Class A Shares delivered upon conversion is registered shall be treated as a stockholder holder of record of such Class A Shares as of the close of business on the relevant Conversion Date. Upon a conversion of Notesthe entire outstanding amount of the Note, such Person the Holder shall no longer be a Holder holder of such Notes the Note surrendered for conversion.
(jg) The Company shall not issue any fractional ADSs Class A Share upon conversion of the Notes Note and shall instead pay cash in lieu of delivering any fractional ADS issuable Class A Share deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Class A Shares on the relevant Conversion Date.
(h) Nothing in this Article 3 shall prejudice the Holder’s entitlement to receive interest on any of the Defaulted Amounts in accordance with Section 2.6.
Appears in 1 contract
Samples: Convertible Note and Warrant Subscription Agreement (Secoo Holding LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent and the Trustee (if other than the Conversion Agent) as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and the Trustee (if other than the Conversion Agent) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to such the converting Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Lannett Co Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect on the Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection Section 14.02(j). The Company will deliver such shares of Common Stock and pay such cash (jif any) of this Section 14.02 on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “"Notice of Conversion”") at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s 's nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s 's Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s 's name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04herein, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Except as set forth below, the Company’s '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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Conversion Rights Termination Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding date on which the corresponding Interest Payment Date (or, if such Interest Payment Date interest amount is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date)paid; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding date on which the corresponding Interest Payment Date (or, if such Interest Payment Date interest amount is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date)paid; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion, except for purposes of enforcing its right to receive (x) the consideration due upon conversion and (y) in the case of a conversion following a Regular Record Date and prior to the related Interest Payment Date, interest payable on such Notes.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately after the close of business on the Conversion Date for such conversion, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 9.02, on the second Business Day immediately following the relevant such Conversion Date.
(b) Subject to Section 14.02(e9.02(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)Date. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 IX on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0310.02. 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 (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the 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 ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.049.04, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 14IX.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding after 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 after the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record as of the Conversion Agent (if close of business on the Regular Record Date immediately preceding the Maturity Date, or immediately preceding any Redemption Date or Fundamental Change Repurchase Date as described in the immediately preceding sentence, shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs shall be issuable the certificate for the shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Clovis Oncology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e3.3(c), 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date Business Day (the “Conversion Date”) that the Holder has complied with delivered a duly completed irrevocable written notice (the requirements set forth “Conversion Notice”) and the Note for cancellation to the conversion agent (as specified in subsection (b) the Indenture). Within three Business Days after the delivery of the Note and the Conversion Notice to the Conversion Agent pursuant to Section 3.1 above. If any ADSs are due to a converting Holder, the Company shall issue or cause (i) take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the issuance of the full number of ADSs Ordinary Shares to which such the Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Section 3.1, (ii) if required by applicable Law, deliver to the Company’s Holder certificate(s) representing the number of Ordinary Shares delivered upon each such conversion and (iii) subject to Section 3.3(c), cancel (or cause the cancellation of) the Note. No Conversion ObligationNotice may be delivered and the Note may not be surrendered by a Holder for conversion thereof if the Holder has also delivered a Fundamental Change Repurchase Notice or a Founder Departure Repurchase Notice to the Conversion Agent in respect of the Note and not validly withdrawn such Fundamental Change Repurchase Notice or Founder Departure Repurchase Notice in accordance with ARTICLE 5.
(db) The Company shall not issue any fractional Ordinary Share upon conversion of the Note and shall instead pay cash in lieu of any fractional Ordinary Share deliverable upon conversion based on the Last Reported Sale Price of the Ordinary Shares on the relevant Conversion Date.
(c) In case any certificated the event the Holder surrenders this Note shall be surrendered pursuant to Section 3.3(a) for partial conversion, the Company shall shall, in addition to cancelling (or causing the cancellation of) the Note upon such surrender, execute and the Trustee shall authenticate and deliver deliver, or procure to or upon the written order of be delivered, to the Holder of the Note so surrendered a new Note or Notes in authorized denominations and in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(ed) If a the Holder submits a the Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs the Ordinary Shares upon such conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNote, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) Shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Conversion Agent may refuse to deliver the certificates representing the Ordinary Shares being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(fe) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation each conversion pursuant to this ARTICLE 3 shall be deemed to satisfy in full its obligation to pay the principal amount of the Note converted and accrued and unpaid interestinterest thereon, if any, to, but not including, the relevant Conversion Date. As a result, such 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. Notwithstanding the foregoing, if Notes are this Note is 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 the Holder of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes the Note on the corresponding Interest Payment Date notwithstanding the conversionpending conversion for so long as it remains a Holder of the Note and there remains outstanding principal. However, Notes surrendered for Any issuance of Ordinary Shares upon conversion of the Note 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)Note; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; , (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date or a Founder Departure Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(if) The Person Except as provided in whose name any ADSs Section 4.2, no adjustment shall be issuable made for dividends on any Ordinary Shares issued upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this ARTICLE 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Notes Purchase Agreement (Ctrip Com International LTD)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company Issuer shall deliver pay or deliver, as the case may be, to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number shares of ADSs equal to the Conversion RateCommon Stock, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 The shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: the Issuer 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 second Business Day immediately following the relevant Conversion Date.;
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company Issuer or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, Agent and (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)documents. The Trustee (and if different, the Conversion Agent) shall notify the Company Issuer of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Hxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company Issuer in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs Except as provided in Section 14.03 and Section 14.07 below, the Issuer shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date. At such time as shares of Common Stock are due to a converting HolderHolders, the Company Issuer shall issue or cause to be issuedissued by its stock transfer agent, 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 ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the CompanyIssuer’s Conversion Obligation. Prior to the issuance of Common Stock, the Issuer 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. For the avoidance of doubt, neither the Conversion Agent nor the Trustee shall have any responsibility for the issuance by the Issuer of shares of Common Stock.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company 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 Company Issuer or Trustee, with payment by the converting Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company Issuer shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall Issuer (or if the stock certificates are delivered by the Issuer 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs shares of Common Stock issued upon the conversion of any Note as provided in this Article 14Note.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company 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. The CompanyIssuer’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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company Issuer shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
(k) Notwithstanding anything to the contrary herein, no Holder shall be entitled to receive shares of Common Stock (taking into account any Common Stock obtained pursuant to the Purchase Agreement, or in connection with any securities purchased thereunder) 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 9.9% 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 Issuer’s obligation to make such delivery shall not be extinguished and the Issuer shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Issuer that such delivery would not result in it being the beneficial owner of more than the Limitation.
(l) In no event will the aggregate number of shares of Common Stock issued (taking into account any Common Stock obtained pursuant to the Purchase Agreement, or in connection with any securities purchased thereunder) upon conversion of the Notes exceed 19.9% of the number of shares of Common Stock outstanding on the Trading Day immediately preceding the Issue Date (as appropriately adjusted for share splits, share dividends, combinations, recapitalizations and the like) (the “19.9% Share Cap”), unless the issuance of shares of Common Stock in excess of the 19.9% Share Cap is duly approved in advance by the holders of Common Stock in accordance with Section 312.03 of the NYSE Listed Company Manual.
(m) In no event will the aggregate number shares of Common Stock issued (taking into account any Common Stock obtained pursuant to the Purchase Agreement, or in connection with any securities purchased thereunder) upon conversion of the Notes exceed 24.9% of the number of shares of Common Stock outstanding on the Trading Day immediately preceding the date of the issuance (the “24.9% Share Cap”), unless the issuance of shares of Common Stock in excess of the 24.9% Share Cap is duly approved in advance by FINRA.
Appears in 1 contract
Samples: Indenture (RCS Capital Corp)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to this Section 14.02, Section 14.07(a) and Section 14.14(b), upon conversion of any Note, the Company shall deliver pay or deliver, as the case may be, to the converting HolderHolder no later than two (2) Business Days following the applicable conversion of the Notes, in respect of each US$$1,000 principal amount of Notes being converted, a number shares of ADSs equal to the Conversion RateCommon Stock, together with a cash paymentcash, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) as set forth in this Section 14.02. The Company shall use the Physical Settlement Method for all conversions. The shares of Common Stock and cash the Company shall pay and/or deliver, as the case may be, in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows 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 second Business Day immediately following the relevant Conversion DateDate (plus cash in lieu of any fractional share of Common Stock issuable upon conversion).
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures Applicable Procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and documents, (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if any, pursuant to Section 14.02(e). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change an Asset Sale Offer Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Asset Sale Offer Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. Notwithstanding anything to the contrary contained herein, to the extent that an indirect holder of a Global Note held indirectly through a participant submits irrevocable instructions to convert any portion of such Note, such Holder shall be deemed for purposes of Regulation SHO to have converted the applicable portion of such Note at the time of delivery of such instructions, regardless of when shares of Common Stock are delivered to such Holder or its participant. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (bii) aboveabove . Except as set forth in Section 14.07(a) and Section 14.14(b), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. 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 ADSs shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbelow . The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not includingexcluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the holder Holder of record on the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (if 2) above shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted, redeemed and/or repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: First Supplemental Indenture and Amendment to Security and Pledge Agreement (UpHealth, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.03(b), Section 14.07(a) and Section 14.12, upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are a multiple of $1,000 principal amount.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). In addition, a Holder may be required to provide a certification as to whether the Person (or Persons) receiving shares of Common Stock upon conversion is, or would, as a result of such conversion, become the Beneficial Owner of a number of shares of Common Stock in excess of any Beneficial Ownership limit then applicable to such Person (or Persons) pursuant to Section 14.12. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Physical Notes may be deliveredor notice of conversion pursuant to the procedures of the Depositary with respect to any Global Note, and no Notes in each case, may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Company, to the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Subject to Section 14.12, the Person in whose name any ADSs shall be issuable the certificate for the shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Xenoport Inc)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. 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 immediately succeeding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Enphase Energy, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.12, upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount Original Principal Amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount Original 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 ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount Original 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount Original Principal Amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentarystamp, stamp court, transfer or similar issue or transfer documentary tax or similar governmental charge any other excise or property tax required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issuecourt, transfer or similar documentary tax or any other excise or property tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs the 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount Original Principal Amount represented thereby. The Company shall notify the Trustee Trustee, in writing writing, of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount Accreted 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted converted. If there is a conversion between the Record Date and the Interest Payment Date (regardless of whether for regular period), the converting Holder was Holders will return the holder of record on interest and the corresponding Regular Record Date)Trustee will reimburse the Company; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
(k) The Conversion Agent will open a non-interest bearing account in the name of the Company in relation to its cash settlements.
Appears in 1 contract
Samples: Indenture (Scorpio Tankers Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Hxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the certificate form required by Section 2.05(d), or in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)format, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
(k) If the Company calls a Note for redemption pursuant to Article 16, then the Holder of such Note may surrender such Note for conversion only until the close of business on the Business Day prior to the Redemption Date. After that time, the right to convert shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.
Appears in 1 contract
Samples: Indenture (Gran Tierra Energy Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately after the close of business on the Conversion Date for such conversion, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second Business Day immediately following the relevant such Conversion Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, in addition to any certificates that may be required to be delivered pursuant to Section 13.12, 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)Date. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 XIII on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates (or, if the Note to be converted is a Global Note, a book-entry transfer through the Depositary) for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following whose Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding after the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record as of the Conversion Agent (if close of business on the Regular Record Date immediately preceding the Maturity Date, or immediately preceding any Fundamental Change Repurchase Date as described in the immediately preceding sentence, shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Subject to Section 13.12, the Person in whose name any ADSs the certificate for the shares of Common Stock delivered upon conversion is registered shall be issuable upon conversion shall be treated as deemed to become a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Clovis Oncology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 on the second Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a This 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall will be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with delivered (1) a duly completed and executed irrevocable written notice to the requirements set forth Registrar in subsection the form attached hereto as Exhibit A (bthe “Conversion Notice”), (2) abovethe certificate evidencing this Note (the “Note Certificate”) to the Registrar for cancellation or notation of the outstanding principal amount of this Note after partial conversion, and (3) the ADS conversion documents pursuant to the procedures of the Depositary in effect at that time to the Registrar and the Depositary. If any ADSs are due On or before the third (3rd) Business Day following the date of receipt of a Conversion Notice, the Registrar will transmit by facsimile or other electronic means a confirmation of receipt of such Conversion Notice to a converting Holderthe Holder (the “Receipt Confirmation” and such date of transmission, the “Receipt Confirmation Date”). Within five (5) Business Days after the relevant Receipt Confirmation Date, the Company shall issue or cause will (i) take all actions and execute all documents and procure that the Depositary take all actions and execute all documents necessary to be issued, and deliver (if applicable) to such Holder, or such Holder’s nominee or nominees, effect the full issuance of the number of ADSs to which such the Holder shall will be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of any conversion pursuant to Sections 3.1 or 3.2, (ii) cause entries on the Company’s register of members to be entered with respect to the Ordinary Shares represented by such ADSs in the name of the Depositary for the purpose of such deposit and (iii) subject to Section 3.6(c), cancel this Note Certificate. No Conversion ObligationNotice may be delivered and this Note Certificate may not be surrendered by the Holder for conversion thereof if the Holder has also delivered a Relevant Event Put Exercise Notice to the Registrar in respect of this Note and not validly withdrawn such Relevant Event Put Exercise Notice in accordance with Section 5.3. A single certificate will be issued in respect of all ADSs issued on conversion of this Note subject of the same Conversion Notice.
(db) The Company will not issue any Fractional ADS upon conversion of this Note and will instead pay cash in lieu of any Fractional ADS deliverable upon conversion based on the VWAP of the ADSs on the relevant Conversion Date.
(c) In case any certificated the event the Holder presents this Note shall be surrendered Certificate to the Registrar pursuant to Section 3.6(a) for partial conversion, the Company shall execute and Registrar will record the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate outstanding principal amount equal to the unconverted portion of the surrendered Note, presented Note Certificate on the Register and the “Schedule of Outstanding Principal Amount of this Note in respect of which this Note Certificate is issued” attached to this Note Certificate and update the Register to reflect such outstanding principal amount. Such recoding will be made without payment of any service charge by the converting Holder.
(d) If the Holder butsubmits this Note Certificate to the Registrar for conversion, if required by the Company or Trustee, with payment of a sum sufficient to cover will pay any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer or similar tax due on the delivery of any the ADSs upon such conversion of the Notes this Note (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall will pay that tax. The Company shall will pay the ADS relevant Depositary’s fees for the issuance of the ADSs.
(fe) Except as provided in Section 14.04, no adjustment shall The number of ADSs to be made for dividends issued on any ADSs issued upon the conversion of any a Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in will be determined by dividing the principal amount represented thereby. The Company of Note to be converted by the Conversion Price (in the event of Fractional ADS, cash in lieu of such Fractional ADS shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth belowbe paid pursuant to Section 3.6(b)). The Company’s settlement of the full Conversion Obligation shall each conversion pursuant to this Article 3 will be deemed to satisfy in full its obligation to pay the principal amount of this Note converted.
(f) If the Note and accrued and unpaid interest, if any, torecord date for the payment of any dividend or other distribution in respect of the Original Shares is on or after the Conversion Date in respect of this Note, but not includingbefore the issuance of the ADS to the Holder, the relevant Conversion Date. As a result, accrued Company will calculate 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior directly pay to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by converting Holder an amount in U.S. dollars (the “Equivalent Amount”) equal to the amount Fair Market Value of interest payable such dividend or other distribution to which the Holder would have been entitled had the Depositary on the Notes so converted (regardless of whether the converting Holder was the holder that record date been such a shareholder of record on of Original Shares and will make the corresponding Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the same time of conversion with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any as it makes payment of the conditions to conversion have been satisfieddividend or other distribution, or as soon as practicable thereafter, but, in any event, not later than seven (7) Business Days thereafter.
(ig) The Person Except as provided in whose name Section 3.6(f), no adjustment will be made for dividends on any ADSs shall be issuable delivered upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a any conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionthis Note as provided in this Article 3.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (NaaS Technology Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately after the close of business on the Conversion Date for such conversion, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02, on the second Business Day immediately following the relevant such Conversion Date.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the 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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h)Date. The Trustee (and and, if different, the Conversion Agent) shall notify the Company of receipt of any conversion Notice of Conversion, receipt of any Notes from Holders and receipt of any payment of interest from a Holder pursuant to this Article 14 XIII on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (ba) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Transfer Agent or to such Holder, or such Holder’s nominee or nominees, certificates (or, if the Note to be converted is a Global Note, a book-entry transfer through the Depositary) for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Physical Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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 cancelledcanceled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following whose Conversion Date occurs after the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding after the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (43) to the extent of any Defaulted Amountsoverdue interest, if any Defaulted Amounts overdue interest exists at the time of conversion with respect to such Note. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record as of the Conversion Agent (if close of business on the Regular Record Date immediately preceding the Maturity Date, or immediately preceding any Fundamental Change Repurchase Date as described in the immediately preceding sentence, shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the certificate for the shares of Common Stock delivered upon conversion is registered shall be issuable upon conversion shall be treated as deemed to become a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Clovis Oncology, Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 14.12, upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “"Notice of Conversion”") at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “"Conversion Date”") that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s 's nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s 's Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentarystamp, stamp court, transfer or similar issue or transfer documentary tax or similar governmental charge any other excise or property tax required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issuecourt, transfer or similar documentary tax or any other excise or property tax due on the delivery issuance of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s 's name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs the 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s '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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Samples: Indenture (Scorpio Tankers Inc.)
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion RateRate in effect immediately prior to the close of business on the relevant Conversion Date, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 14.02. The Company shall deliver the consideration due in respect of any conversion of Notes on the second third Business Day immediately following the relevant Conversion Date.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, (1) book-entry transfer such Holder’s beneficial interest therein to the Conversion Agent, (2) comply with the Depositary’s then applicable conversion procedures of the Depositary in effect at that time and, and (3) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note Note, (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder Xxxxxx is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Purchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Purchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issuance of any ADSs the shares of Common Stock upon the conversion of the Notes or the issuance of the underlying Class A Ordinary SharesNotes, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that the tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversionconversion of a Note, a the Holder thereof shall not receive any separate additional cash payment for accrued and unpaid interest, if any, except unless such Holder is the Holder on a Regular Record Date and such conversion occurs between such Regular Record Date and the Interest Payment Date to which it relates as set forth below, and the Company shall not adjust the Conversion Rate to account for accrued and unpaid interest. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Holders of Notes are converted after at the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will shall receive the full amount payment of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversionconversion of such Notes at any time after the close of business on the applicable Regular Record Date. However, Notes surrendered for conversion during the period from by a Holder after the close of business on any Regular Record Date but prior to the open of business on the immediately following next Interest Payment Date must be accompanied by payment of an amount in U.S. dollars equal to the amount of interest that will be payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided provided, however, that no such payment shall need be required made (1) for conversions if, following the Regular Record Date immediately preceding the Maturity Date; (2) if a Fundamental Change, the Company has specified a Redemption Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding date the corresponding Interest Payment interest payment is made; (2) with respect to any Notes surrendered for conversion following the Regular Record Date (or, if such Interest Payment Date is not a Business Day, immediately preceding the third Business Day immediately succeeding such Interest Payment Maturity Date); or (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding such Interest Payment Date); or (4) only to the extent of any Defaulted Amounts, if any Defaulted Amounts exists exist at the time of conversion with respect to such NoteNotes. Neither As a result of the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by foregoing, the Company shall pay interest on the Maturity Date on all Notes converted after the Regular Record Date immediately preceding the Maturity Date, and converting Holders shall not be required to pay the Company an equivalent interest amount. The Company shall not be required to convert any Notes that are surrendered for conversion without payment of whether any of the conditions to conversion have been satisfiedinterest as required by this subsection.
(i) The Person in whose name the certificate for any ADSs shall be issuable shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Closing Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any ADSs (“Fractional ADSs”) that would represent a fractional ordinary share (assuming delivery of the maximum number of ADSs due upon conversion that do not represent a fractional ordinary share) in accordance with subsection (j) of this Section 14.02 14.02, on the second third Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission facsimile thereof) (a “Notice of Conversion”) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed irrevocable Notice of Conversion to the Conversion Agent at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, delivered and no Notes may be surrendered for conversion, by a Holder for conversion thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03. A Notice of Conversion shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Notice of Conversion is delivered. Any Notice of Conversion and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day. If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. None of the agents of the Trustee shall have any responsibility whatsoever with respect to the issuance and delivery of the ADSs to the converting Holder.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and instruct the Trustee who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any the ADSs upon conversion of the Notes (or the issuance of the underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A such Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the ADSs (or the Ordinary Shares) being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Xxxxxx in accordance with the immediately preceding sentence. The Company shall pay the ADS Depositary’s fees for the issuance of the ADSs.
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs issued delivered upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the direction of the Trustee, Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any duty to determine or verify determination by the Company of whether any of the conditions to conversion have been satisfied.
(i) The Person in whose name the certificate for any ADSs shall be issuable delivered upon conversion is registered shall be treated as a stockholder holder of record of such ADSs as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs Fractional ADS upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional Fractional ADS issuable deliverable upon conversion based on the Daily VWAP for Last Reported Sale Price of the ADSs on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon conversion of any Note, the Company shall deliver to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j(j) of this Section 14.02 Section 14.02, on the second Business Day immediately following the relevant Conversion Date.
(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 (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed 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 of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs the shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article Article 14 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note)Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery of any ADSs upon conversion issue of the Notes or the issuance shares of the underlying Class A Ordinary SharesCommon Stock upon conversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section Section 14.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding following the corresponding Interest Payment Date, in respect of Notes converted after the close of business on such Regular Record Date (or, if such Interest Payment Date is not a Business Day, and on or prior to the third Business Day immediately succeeding open of business on such Interest Payment Date); , (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent (if other than Regular Record Date immediately preceding the Trustee) will have any duty to determine or verify determination by Maturity Date shall receive the Company full interest payment due on the Maturity Date in cash regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP for Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
Appears in 1 contract
Conversion Procedure; Settlement Upon Conversion. (a) Upon Subject to Section 13.02(c), Section 13.02(k), Section 13.03(b) and Section 13.07(a), upon conversion of any Note, the Company shall deliver satisfy its Conversion Obligation by delivering to the converting Holder, in respect of each US$$1,000 principal amount of Notes being converted, a number of ADSs shares of Common Stock equal to the Conversion Rate, together with a cash payment, if applicable, in lieu of delivering any fractional ADSs share of Common Stock in accordance with subsection (j) of this Section 14.02 13.02(c), and the Interest Make-Whole Payment, if applicable, as set forth in Section 13.01(b), on the second third Business Day immediately following the relevant Conversion Date. A Holder may convert fewer than all of such Xxxxxx’s Notes so long as the Notes converted are an integral multiple of $1,000.
(b) Subject to Section 14.02(e13.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h13.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver a duly completed an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF .PDF attachment or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs shares of Common Stock to be delivered upon settlement of the Conversion Obligation (and settlement of any Interest Make-Whole Payment, if applicable) to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents documents, (4) if required, pay all transfer and similar taxes as set forth in Section 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(h13.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 13 on the Conversion Date, or promptly following instructions Date for such conversion. No Notice of Conversion with respect to any Physical Notes may be deliveredor notice of conversion pursuant to the procedures of the Depositary with respect to any Global Note, and no Notes in each case, may be surrendered for conversion, by a Holder thereof if such Holder Xxxxxx has also delivered a Fundamental Change Repurchase Notice or Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.0314.02. If Subject to 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 and Interest Make-Whole Payment, if applicable, 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. If any ADSs are due to a converting Holder, the The Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of ADSs shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary or, in the case of ADSs bearing restrictive legends substantially in the form required by Section 2.05(d), in book-entry format recorded in the registration system maintained by the ADS Depositary (whether the Note so converted is in the form of a Global Note or Physical Note), entitled in satisfaction of the Company’s Conversion ObligationObligation together with any Interest Make-Whole Payment, if applicable.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Company, to the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue, transfer stamp or similar issue or transfer tax due on the delivery issue of any ADSs shares of Common Stock upon conversion of the Notes or the issuance of the underlying Class A Ordinary Sharesconversion, unless the tax is due because the Holder requests such ADSs (or the Class A Ordinary Shares) shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company shall or 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 ADS Depositary’s fees for the issuance of the ADSsimmediately preceding sentence.
(f) Except as provided in Section 14.0413.04, no adjustment shall be made for dividends on any ADSs 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 ADS Custodian (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 Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but 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. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date and but prior to the open of business on the corresponding immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date will 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 an amount in U.S. dollars funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was the holder of record on the corresponding Regular Record Date)converted; provided that no such payment shall be required (1) for Notes in respect of which an Interest Make-Whole Payment is payable upon conversion; (2) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately succeeding the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the third Business Day immediately succeeding such Interest Payment Date); (3) if the Company has specified a Fundamental Change Repurchase Date that is is
after a Regular Record Date and on or prior to the Business Day immediately succeeding following the corresponding Interest Payment Date (or, if such Interest Payment Date is not a Business Day, the second Business Day immediately succeeding 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. Neither Therefore, for the Trustee nor avoidance of doubt, all Holders of record on the Conversion Agent Regular Record Date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date described in clause (if 3) of the immediately preceding sentence and Holders entitled to an Interest Make-Whole Payment upon conversion described in clause (1) shall receive the full interest payment due on the Maturity Date or other than the Trustee) will have any duty to determine or verify determination by the Company applicable Interest Payment Date regardless of whether any of the conditions to conversion their Notes have been satisfiedconverted following such Regular Record Date.
(i) The Person in whose name any ADSs the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversionconversion on the relevant Conversion Date.
(j) The Company shall not issue any fractional ADSs share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional ADS share of Common Stock issuable upon conversion based on the Daily VWAP Last Reported Sale Price of the Common Stock.
(k) The Company shall not issue to a Holder, and a Holder may not acquire, a number of shares of Common Stock upon conversion of such Holder’s Notes (including any shares of Common Stock deliverable in connection with any Interest Make-Whole payment) to the extent that, upon such conversion, the number of shares of Common Stock then beneficially owned by a Holder and its Affiliates and any other Persons or entities whose beneficial ownership of the Common Stock would be aggregated with such Holder for the relevant Conversion Datepurposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which such holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth in this Section 13.02(k)) would exceed 9.985% of the total number of the shares of the Common Stock then issued and outstanding (the “9.985% Cap”); provided that, the 9.985% Cap shall not apply to the extent that shares of Common Stock are not deemed to constitute “equity securities” pursuant to Rule 13d-1(i) under the Exchange Act. To effectuate the purposes of this Section 13.02(k), the following provisions shall apply to Notes tendered for conversion:
(i) At such time as a Holder tenders Notes for conversion, such Holder shall provide a certification to the Company as to whether the Person (or Persons) receiving shares of Common Stock upon such conversion is or would, as a result of such conversion, become a beneficial owner of shares of Common Stock outstanding at such time (based upon the latest number of shares outstanding reported in the Company’s filings with the Commission) in excess of the 9.985% Cap.
(ii) If any delivery of shares of Common Stock otherwise owed to any Person (or Persons) upon conversion of the Notes is not made, in whole or in part, as a result of this Section 13.02(k), the Company’s obligation to make such delivery shall not be extinguished and, such Holder may either:
(1) request the return of the Notes surrendered by such Holder for conversion, after which the Company shall deliver such Notes to such Holder within three Trading Days after receipt of such request; or
(2) certify to the Company that the Person (or Persons) receiving shares of Common Stock upon conversion is not, and would not, as a result of such conversion, become the beneficial owner of shares of Common Stock outstanding at such time in excess of the 9.985% Cap, after which the Company shall deliver any such shares of Common Stock withheld on account of such applicable beneficial ownership limits by the later of (i) the date such shares were otherwise due to such Person (or Persons) and (ii) three Trading Days after receipt of such certification; provided, however, until such time as the affected Holder gives such notice, no Person shall be deemed to be the stockholder of record with respect to the shares of Common Stock otherwise deliverable upon conversion in excess of any applicable beneficial ownership limit. Upon delivery of such notice, the provisions of this Section 13.02 shall apply to the shares of Common Stock to be delivered pursuant to such notice. A conversion inconsistent with this Section 13.02(k) (whether at the election of a Holder or the Company) will be null and void to the extent the issuance of shares of Common Stock upon such conversion would violate this limitation.
Appears in 1 contract
Samples: Indenture (Kempharm, Inc)
